Wisconsin National Guard (WING) Reasonable Accommodation And Personal Assistance Services Process

Wisconsin National Guard Human Resources Instruction

Summary. This instruction outlines Wisconsin National Guard (WING) Reasonable Accommodation and Personal Assistance Services Process in accordance with 29 Code of Federal Regulations (CFR) § Part 1630 and the Americans with Disabilities Act Amendments Act (ADAAA).

Applicability. This instruction applies to “WING employees.” “WING employees” or “employees” throughout this instruction are defined as Title 32 Dual Status Technicians- Excepted Service and WING Title 5 National Guard Employees (Competitive and Excepted Service). This instruction also applies to applications for employment. This instruction does not apply to state employees. Where a federal supervisor oversees State employees, the supervisor consults the State Human Resources Office regarding reasonable accommodations.

1. Where provisions of this plan differ from negotiated labor agreements, the provisions of the negotiated agreements apply.
   
2. Where provisions of this plan differ from changes in law, the changes in law apply.
   
3. Where this plan is silent, the flexibilities provided by regulation or guidance from higher authority are preserved.

Proponent and Exception Authority. The proponent of this instruction is the Director, Human Resources. The proponent has authority to approve exceptions to this instruction that are consistent with controlling law and regulations. Within the following pages, the “proponent” is the drafting authority of the Human Resources Office.

Supplementation. Supplementation of this publication is prohibited.

Suggested Improvements. Users are invited to submit comments and suggested improvements to Director, Human Resources, 2400 Wright Street, Madison, WI 53704.

Releasability. This instruction is approved for public release; distribution is unlimited. It is available electronically on the WING Guard Knowledge Network site under Staff and Departments > Human Resources Office.

Effective Date. This instruction is effective on publication and must be revised, reissued, canceled, or recertified as current every five years.

Christopher M. Robbins
LTC, AR, WIARNG
Director, Human Resources Office

TABLE OF CONTENTS

Chapter 1

Introduction

1-1. References

1-2. Acronyms and Definitions

1-3. Purpose

1-4. Scope

1-5. Policy

1-6. Responsibilities

1-7. Information Tracking, Reporting, and Disposition

Chapter 2

Reasonable Accommodation (RA) Procedures

2-1. Requesting a Reasonable Accommodation

2-2. Interactive Process

2-3. Time Frame for Processing Requests and Providing Reasonable Accommodations

2-4. Expedited Processing of a Request

2-5. Interim Accommodations and Extenuating Circumstances

2-6. Request for Medical Information

2-7. Confidentiality

2-8. Resolution of the Reasonable Accommodation Request

2-9. Implementation of Accommodation

2-10. Reconsideration and Appeal of Reasonable Accommodation

2-11. Procedures Related to Statutory and Collective Bargaining Agreement (CBA)

2-12. Inquiries and Distribution

Chapter 3

Personal Assistance Services (PAS) Request Procedures

3-1. Requesting Personal Assistance Services

APPENDIX A

Process Flow Chart for Reasonable Accommodations and Personal Assistance Services

APPENDIX B

Wisconsin National Guard Reasonable Accommodation and Personal Assistance Forms

APPENDIX C

Resources for Reasonable Accommodations and Personal Assistance Services

APPENDIX D

References

GLOSSARY

Acronyms

Definitions

CHAPTER 1

Introduction

1-1. References

This Human Resources Instruction (HRI) is not intended to stand alone and must be used in conjunction with the references in Appendix D.

1-2. Acronyms and Definitions

View the Glossary.

1-3. Purpose

These procedures establish Wisconsin National Guard (WING) responsibilities and guidelines to support the prompt, fair, and efficient processing of reasonable accommodation (RA) and personal assistance services (PAS) requests in compliance with statutory and regulatory requirements.

1. The WING processes requests for RA and PAS in a prompt and efficient manner.
2. The WING utilizes an interactive process to respond to RA (to include PAS) requests.
3. This cooperative practice allows a streamlined approach to ensure effective management of providing accommodations. Supervisors and employees requesting an accommodation are encouraged to participate in the interactive process in good faith. Stages of this process are:

1. Recognizing an accommodation request;
2. Gathering information;
3. Exploring accommodation options;
4. Choosing an accommodation;
5. Implementing the accommodation; and,
6. Monitoring the accommodation.

1-4. Scope

This HRI covers policies and procedures for processing disability RA and PAS, as well as Pregnant Workers Fairness Act (PWFA) accommodation requests for WING employees.

1. These procedures do not apply to WING military personnel in a Title 10 status or Active Guard Reserve (AGR) personnel.
2. WING employees should first initiate workplace accommodations through their respective Air or Army workplace accommodation representatives prior to requesting a RA with the WING Disability Program Manager (DPM). T32 Technicians may make a RA request; however, they must meet all applicable requirements for continued military service to include medical readiness, which may impact their full-time job as a technician.
3. This document does not address religious accommodation requests. WING employees may request religious accommodations through their Air or Army Chaplains Offices.

1-5. Policy

This document establishes the RA process in accordance with (IAW) the Rehabilitation Act of 1973 (29 U.S.C § 791), as amended, the Americans with Disabilities Act Amendments Act (ADAAA), the PAS process IAW 29 CFR § 1614.203(d)(5), and the PWFA (29 CFR 1636).

1. The Rehabilitation Act of 1973, as amended, established employment protection for individuals with disabilities, prohibits discrimination, and served as a model for the Americans with Disabilities Act (ADA) of 1990 and Americans with Disability Act Amendments Act (ADAAA) of 2008. The ADAAA protects people with disabilities from discrimination and it broadened the definition of “disability” to include a wider class of employees who may be entitled to job accommodations and protected leave. It requires employers to provide RA to qualified individuals with disabilities who are employees or applicants for employment, except when such accommodation would cause undue hardship.
2. As part of federal agencies affirmative action programs and part 1614 of the Rehabilitation Act, qualified employees may receive PAS to accommodate individuals who, because of targeted disabilities, require assistance to perform basic activities of daily living (ADLs) such as eating and using the restroom.
3. The Pregnant Workers Fairness Act (PWFA) expanded the rights of workers under Title VII of the Civil Rights Act of 1964 (Title VII), as amended by the Pregnancy Discrimination Act of 1978 (PDA), and the ADA of 1990 as amended by the ADA Amendments Act of 2008 (ADAAA) when congress determined that the legal protections offered by Title VII and the ADAAA were insufficient. The PWFA ensures qualified employees may receive RAs for known limitations relating to pregnancy, childbirth, or related medical conditions, absent undue hardship.
4. The WING provides RAs to individuals with disabilities to allow them to fully participate in the application process, perform essential job functions, and enjoy equal benefits and privileges of employment, IAW applicable laws, regulations, and policies unless to do so would cause a direct threat to the health and safety or undue hardship to the operations of the unit. Note that whether cost is an undue hardship, the budget of the entire agency is considered (Department of Air Force or Department of Army).
5. The responsibility for funding the cost of RAs resides within each agency component (Wisconsin Air National Guard or Wisconsin Army National Guard). However, for most requests, the facility where the requester is employed or in the case of recruitment, the organization where the applicant seeks to be employed should make the purchase. Often accommodations that are electronic equipment or information technology may be obtained through the U.S. Department of Defense’s Computer/Electronic Accommodation Program (CAP) at no cost to the WING and are funded by CAP centralized funds.
6. This policy applies to accommodation requests from WING employees and applicants with disabilities. RA requests are processed IAW the procedures contained in this HRI. Offices and facilities are not permitted to write their own instruction, handbook, procedures, or policy. Training is only conducted by the WING Equal Opportunity Office or by an approved designee.
7. If an employee is no longer qualified or able to perform the essential functions of the job, reassignment to a vacant, funded position can be a RA, but the WING is not required to create a position for the employee.

1-6. Responsibilities

The Adjutant General (TAG)

TAG establishes an effective RA and PAS program to meet the statutory and regulatory requirements of the EEOCs Enforcement Guidance under the ADA.

1. TAG is the highest level of authority in the state concerning the overall application of this HRI.
2. TAG delegated these authorities to the Human Resources (HR) Director.

Chief of Staff-Joint Staff (JCS)

JCS is the appeal authority for RA and PAS requests.

Disability Program Manager (DPM)

DPM administers and overseas the agency-wide RA and PAS program IAW the procedures outlined in this HRI; and,

1. Provides guidance, training, and technical assistance to supervisors, employees, and applicants concerning their rights and responsibilities under the RA and PAS program.
2. Processes, tracks, and maintains all RA and PAS requests and records, except for medical documentation.
3. Notifies requester’s immediate supervisor and work center Director, Major Subordinate Command (MSC) Administrative Officer (AO), or full-time O6 Commander within five calendar days when a RA or PAS request is received.
4. Facilitates the RA and PAS interactive process.
5. Ensures the appropriate individuals are consulted regarding specific requests as part of the interactive process.

Human Resources Officer (HRO)

HRO or Human Resources (HR) Director is the decision maker and approving authority for RA and PAS requests. The HRO may delegate this authority to the Assistant Director of the HRO.

Requester

The applicant or employee requesting the RA or PAS is responsible for:

1. Making their request for RA or PAS known either verbally or in writing to a supervisor, manager, or the DPM.
2. Providing necessary documentation to support their RA or PAS request.

Service-Component Medical Representative (SMR)

SMR reviews and maintains medical documentation for all RA and PAS requests. The SMR is responsible for the following:

1. Processing T32 technician and T32 military workplace accommodations. The workplace accommodation process should be used by T32 technicians prior to requesting a RA through the DPM.
2. Reporting approved accommodations to the DPM on the Information Reporting for Reasonable Accommodation Form.
3. Reporting all proposed denials of accommodation to the DPM, Labor Relations Specialist (LRS), and Staff Judge Advocate (SJA) prior to final determination.
4. Maintaining medical documentation records for workplace accommodation requests, RA requests, and PAS requests.
5. Assisting in determining if an identified impairment qualifies as a disability under the ADAAA of 2008.
6. Principle Alternate for receiving and processing RA and PAS requests when the DPM is unable to take receipt.

Managers and Supervisors

Responsible for the following:

1. Recognizing requests for RA and PAS when brought to their attention. The employee does not need to use the words reasonable accommodation or personal assistance. They may simply identify difficulty with a task.
2. Knowing and understanding the RA/PAS policy and procedures.
3. Assisting employees with the RA/PAS interactive process.
4. Collaborating with the DPM throughout the interactive process.
5. Coordinating with the next level supervisor and the work center Director, MSC AO or first O6 Commander throughout the RA request process.
6. Forwarding RA/PAS requests to the DPM within five calendar days.
7. First level supervisors may approve low cost, low impact accommodations which do not impact other employees in the work center (i.e., use of personal lamp instead of overhead florescent lighting in private office).
8. Reporting unit-approved accommodations to the DPM on the Information Reporting for Reasonable Accommodation Form.
9. Reporting proposed denials of accommodation to the DPM, LRS, and SJA prior to final determination.

Staff Judge Advocate (SJA)

The SJA reviews all RAs and PAS prior to final determination for legal sufficiency.

1-7. Information Tracking, Reporting, and Disposition

RA and PAS Tracker

1. The RA and PAS Tracker is a WING internal system consisting of spreadsheets used to maintain regulatory information for processing and reporting all agency RAs and PAS requests.
2. The DPM utilizes the WING DPM RA and PAS Tracker for information tracking and processing of RA and PAS requests.

RA and PAS Record Reporting

1. RA and/or PAS requests may be used to report general information, such as the total number of requests for accommodations/services, types of accommodations and/or services requested, and the length of time taken to process requests.
2. RA and PAS information collected is used to measure the performance of the RA program, determine areas that require further training or revisions, and hold decision makers accountable.
3. RA and PAS program assessments are maintained for three years.

RA and PAS Disposition of Records

1. Records related to an RA and/or PAS requests are maintained at a minimum for the duration of the employee’s tenure and secured in the DPM electronic files except for medical documentation which is secured by the Service-Component Medical Representative (SMR). This prevents the employee from being asked to provide medical information previously submitted.
2. For job applicants who are not selected, the records are maintained electronically for one calendar year after the selection date and then destroyed.

CHAPTER 2

Reasonable Accommodation (RA) Procedures

2-1. Requesting an RA

An RA may be requested at any time, either verbally or in writing, for an adjustment or change concerning some aspect of the application process, the job, or a benefit of employment for a reason related to a medical condition.

1. The RA process begins as soon as the verbal or written request for an accommodation is made to the supervisor of the employee, a supervisor within the employee’s line of supervision, or the DPM. As a result, it is imperative the request be submitted directly to the DPM. If requests are submitted to someone other than the DPM such as a supervisor, office director, etc., the individual receiving the request will forward the request to the DPM within five calendar days of receipt of the request. Upon receipt, the DPM starts the request process using the Request for Reasonable Accommodation or Personal Assistance Services Form hereby referred to as the Request Form.
2. Requests may be made by the applicant, employee, or a designated representative (e.g., family member, medical professional). For example, a doctor’s note outlining medical restrictions may be submitted as a request for RA.
3. The applicant or employee requesting the RA is referred to as the requester. A third-party individual (e.g., family member, medical professional, etc.) requesting the RA is referred to as the requester’s representative.
4. When an individual (or third party) makes an oral request, the DPM must ensure the Request Form is filled out. The DPM must complete the form if the requester does not.
5. A request does not have to include any special words, such as RA, disability, or Rehabilitation Act. A request is any communication that lets the agency know an adjustment or change at work is needed for a reason related to a medical condition.

2-2. Interactive Process

The interactive process requires involvement with the employee requesting the RA and the agency’s interactive process team which includes the manager or supervisor, the DPM, the SMR, HRO, and other personnel with expertise as necessary. The interactive process team evaluates the RA request and possible accommodations which safely meet the essential job functions of the position description.

1. The DPM contacts the requester within five calendar days of receiving an RA request to discuss the reason for the request, how a disability or impairment is prompting a need for an accommodation, and alternative accommodations.
2. If a designated representative makes the RA request, the DPM, if possible, confirms the RA is needed by the applicant or employee before proceeding. Where this is not possible, for example, because the employee has been hospitalized in an acute condition, the DPM initiates the interactive process and consults subject matter experts (SME) to determine if a temporary accommodation is necessary. The DPM consults the employee or representative as soon as practicable.
3. The SMR determines if the impairment qualifies as a disability under the ADAAA of 2008. The DPM coordinates the interactive process team to identify an effective accommodation. This information is recorded on the Recommendation and Review of Reasonable Accommodation/Personal Assistance Services Form hereby referred to as the Recommendation Form.
4. The interactive process team may need to consult with other WING personnel (e.g., leadership team of employee, LRS, SJA, IT department, facilities, etc.) or outside sources to obtain information necessary to make a determination about the request. All parties must give high priority to a request for information or assistance to meet mandatory timelines.
5. A reassignment to a vacant position for which the employee is qualified may be an effective accommodation if no other accommodations are available for the employee to perform the essential functions of their current position, or if the only effective accommodation causes undue hardship.

1. The interactive process team works to identify vacant positions, or positions identified as becoming vacant within 60 calendar days from the date the search is initiated, within the agency for which the employee is qualified to fill with or without a RA.
2. Reassignment may be made to a vacant position outside of the local commuting area if the employee is willing to commute the extra distance or relocate at their own expense.

2-3. Time Frame for Processing Requests and Providing Reasonable Accommodations

Absent extenuating circumstances, the time frame for processing an RA request, including providing the accommodation if the request is approved, is as soon as possible but not later than 45 calendar days from the date the request is made either verbally or in writing.

1. The DPM processes a request and facilitates the interactive process to provide accommodations in as short a period as reasonably possible. Where there is a delay in either processing a request or providing an accommodation, the DPM notifies the requester of the reasons for the delay, including any extenuating circumstances that justify the delay. Unnecessary delays in processing RA requests can result in a violation of the Rehabilitation Act.
2. The processing time frame begins when an oral or written request for a RA is made, and not necessarily when it is received by the DPM. Therefore, all parties involved in processing a request must respond as quickly as possible. This includes referring a request to the SMR, contacting a doctor if medical information or documentation is needed, and providing technical assistance to the DPM regarding issues raised by a request (e.g., information regarding the essential functions of the job and/or information regarding the compatibility of certain adaptive equipment).
3. In the event the SMR must request medical information from a healthcare provider or other appropriate medical professional, the processing time stops on the date the request for medical information is made and resumes on the day the requested information is received by the SMR.
4. If the disability is obvious or already known to the DPM or SMR, and an accommodation can be provided quickly, then the DPM should not require the full 45 calendar days to process the request. The following are examples of when the disability is already known and an accommodation can be provided in less than the allotted time frame.

1. An employee with insulin-dependent diabetes may request three breaks a day to test their blood sugar levels in private.
2. An employee with clinical depression who takes medication that makes it hard for them to be at work by 7:30 a.m. may request an alternate work schedule with a later start time.
3. An employee with a serious learning disability may ask for meeting agendas to be distributed ahead of time because their disability makes it difficult to read quickly and they need more time to prepare prior to meetings.

2-4. Expedited Processing of a Request

In certain circumstances, an RA request requires an expedited review and decision. This includes an accommodation needed for an applicant to apply for a position or to enable an employee to attend a short-notice event. Cases requiring expedited processing are reviewed and implemented as soon as possible.

2-5. Interim Accommodations and Extenuating Circumstances

When a RA cannot be provided immediately, an interim accommodation is identified to avoid, for example, a worsening of symptoms or exacerbation of a medical condition. Under extenuating circumstances, the time for processing an RA request and providing an accommodation is extended as reasonably necessary. An extension is limited to circumstances where it is absolutely necessary and only for as long as required to manage the extenuating circumstance.

2-6. Request for Medical Information

1. If the need for accommodation is not obvious or already known, the SMR is authorized to request medical information identifying the disability requiring the RA. It is the responsibility of the applicant/employee to provide appropriate medical information as requested by the SMR.
2. Generally, the RA request includes appropriate medical documentation. If the medical documentation provided is insufficient to make a determination, the SMR may request additional information from the requester and/or the appropriate health professional in order to substantiate the existence of a disability. The SMR may also give the individual a list of questions to give the health care provider to answer. A doctor’s letter, medical release form or the Medical Inquiry for Reasonable Accommodation Form may be used to provide further information and clarity regarding the requester’s limitations and accommodation needs.
3. The SMR may have the medical information reviewed by a doctor of the agency’s choosing at the agency’s expense to help determine whether the disability meets the Rehabilitation Act definition. The ADAAA directs the definition of disability be construed broadly and the determination of whether an individual has a disability generally should not require extensive analysis. Notwithstanding, the SMR may require medical information to determine an appropriate and effective accommodation.

2-7. Confidentiality

Under the Rehabilitation Act, medical information obtained in connection with the RA process must be kept confidential. This means all medical information the SMR and DPM obtains in connection with a request for RA must be kept in files separate from personnel files. This includes the fact an accommodation has been requested or approved and information about functional limitations. All parties involved in RA requests are bound by these confidentiality requirements.

1. The DPM may share certain information with agency officials as necessary to make appropriate determinations on an RA request. Under these circumstances, the DPM informs the recipients about the confidentiality requirements. The information disclosed is no more than is necessary to process the request. In certain situations, the DPM may not necessarily need to reveal any identifying information (e.g., requester’s name, disability, workplace location).
2. In addition to disclosures of information needed to process a request for accommodation, other disclosures of medical information are permitted as follows:

1. Supervisors are entitled to whatever information is necessary to implement job duty restrictions or provide an RA.
2. First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment or assistance during an evacuation. Government officials may be given the information necessary to investigate the agency’s compliance with the Rehabilitation Act.

3. Anyone with knowledge of an RA does not disclose it to others without an explicit need-to-know. Disclosing the nature or condition of an individual’s impairment and/or limitations or sharing that an individual has an RA could be a violation of the Rehabilitation Act.
4. Examples when disclosure of an RA is and is not necessary when arranging an accommodation include:

1. An individual requests assistive technology or technical equipment. The technology expert likely needs to know the limitations of employee to recommend the most appropriate equipment; however, they do not need to know the underlying medical condition.
2. An individual requests a special lumbar-support chair. Other employees in the work center ask the supervisor why their co-worker is receiving “special treatment.” It is a violation of the Rehabilitation Act if the supervisor reveals the employee has a RA.

5. Examples of what to say when personnel ask supervisors why someone has received equipment, leave, telework, or any other accommodation include:

1. “Individuals can access different work schedules/requirements consistent with policy and law. I am not permitted to share a specific individual’s information with you, but I am happy to discuss any needs or requirements you might have.”
2. “I am not permitted to share an individual’s specific information.”
3. “I cannot share with you the reason [individual] received [equipment, etc.]. Our agency does its best to maintain its employee’s privacy.”

2-8. Resolution of the Reasonable Accommodation Request

Within the interactive process, the interactive process team reviews the RA request form, position description, and medical documentation as necessary. They consult with the manager or supervisor to determine occupational safety and essential functions of the job and discuss possible accommodations. The supervisor and SMR then makes a recommendation to the HRO on the Recommendations and Reviews of Reasonable Accommodation or Personal Assistance Services hereby referred to as the Recommendation Form followed by reviews by the DPM, LRS, the director/wing-level leader, and the SJA. Resolution outcomes are:

1. Approval of the RA Request. The HRO uses the recommendation from the interactive process team to guide the decision. Decisions regarding the approval, modification, or denial of the request for RA are documented on the Determination of Accommodation Request Form hereby referred to as the Determination Form. The DPM coordinates the decision to all interested parties to assist with the implementation of the accommodation.
2. Approval of the Reasonable Accommodation with Modifications (or an Alternative Accommodation). In the event the interactive process team determines there is a different and effective accommodation from the one requested, the supervisor provides a written recommendation both for the reasons for the modification of the specifically requested accommodation and an explanation as to why the interactive process team believes the alternate accommodation is most effective. If the agency offers an accommodation other than the one requested, but the alternative accommodation is not accepted, the supervisor ensures the individual’s rejection of the alternative accommodation is documented on the Determination Form. The requester signs and selects the “Appeal Decision” box on the Determination Form.
3. Denial of the Reasonable Accommodation Request. Denial of an accommodation must be reviewed by the SJA for legal sufficiency. The decision maker must provide a written explanation documenting the specific reason(s) for the denial, to include why the accommodation would result in undue hardship or why it would be ineffective. If the denial is for reasons of undue hardship or the RA is not required by the Rehabilitation Act, alternate accommodations may be explored. Denial of an accommodation does not prevent the individual from making another request later if circumstances change and an accommodation is needed due to limitations from a disability (e.g., the disability worsens, or assignment of new duties require an additional or different RA). Additionally, the DPM may not refuse to process a request for RA, and a RA may not be denied when the denial is based on a belief the accommodation should have been requested earlier (e.g., during the application process). Denial of a RA request is documented on the Determination Form.

2-9. Implementation of Accommodation

1. It is the responsibility of the applicant/employee and supervisor to ensure the approved accommodation is implemented within the allotted time limits. When an accommodation is not procured through other programs, the agency where the employee is assigned is obligated to pay for the expenses of the accommodation unless specifically prohibited by law, regulation, or other guidance. Supervisors should ensure they follow appropriate policies and regulations prior to procuring equipment.
2. Any equipment purchased with WING funds is the property of the WING and will be returned to the agency at the end of employment.
3. Items procured through other programs such as the computer/electronic accommodation program (CAP) is the property of the employee for the duration of employment with the WING. If the employee transfers to another federal agency, they may take the assistive technology with them; otherwise, the items stay with the WING.

2-10. Reconsideration and Appeal of Reasonable Accommodation

An individual who is dissatisfied with the determination of a RA request can submit an informal dispute resolution request of reconsideration to the HRO at the address below or with the DPM. Reconsiderations must be requested within seven calendar days of receiving the signed final Determination Form. A request for reconsideration does not extend the time limits for initiating administrative, statutory, or collective bargaining claims. Submit a request for reconsideration to:

Director, Human Resources Office
Joint Forces Headquarters
2400 Wright Street
Madison, WI 53704

1. Whenever possible and IAW the desires of the requester, the matter is resolved in an informal setting. Informal dispute resolution may include mediation by a disinterested third party, if all agree on the arrangement. These mediation services may include consultation with the requester and any other parties involved, either separately or jointly. Confidentiality in mediation is maintained.
2. If the requester is not satisfied with the decision after requesting reconsideration, they may appeal the decision with the next higher-level authority, the JCS, within seven calendar days from the “Reconsideration” decision. The JCS reviews all documentation of the request, consults with the requester and any other parties involved, either separately or jointly, while maintaining confidentiality of the requester’s conditions and the RA documents. The appeal decision is the final agency decision.
3. An applicant or employee has the right to file an informal complaint if they believe the denial of the RA or PAS request was discrimination or harassment based on their disability. A complaint must be filed with the Equal Opportunity Director/State Equal Employment Manager (SEEM) within 45 calendar days after the date of the denial, or when the applicant or employee became aware of the denial.

2-11. Procedures Related to Statutory and Collective Bargaining Agreement (CBA)

The procedures established by this HRI do not limit or supplant statutory and collective bargaining protections for persons with disabilities and the remedies they provide or the denial of requests for RA.

1. The Determination Form provides information to individuals about their right to file an EEO complaint, pursue Merit Systems Protection Board (MSPB) action, and/or file a union grievance.
2. To pursue an EEO complaint, MSPB action, or collective bargaining remedies for denial of RA, an individual must adhere to the following requirements:

1. For an EEO Complaint: The individual must contact an EEO Counselor or the EEO Director within 45 calendar days from the date of receipt of the Determination Form or a verbal response to the request (whichever comes first). The applicant or employee may file a discrimination complaint when there is an unreasonable delay in the decision regarding a RA request.
2. Adverse actions over which the MSPB has jurisdiction: The individual must initiate an appeal to the MSPB within 30 calendar days of the appealable adverse action as defined in 5 CFR 1201.3.
3. Collective bargaining claim: The individual must file a written grievance IAW the provisions of the CBA.

3. The procedures established by this HRI create no new enforceable rights under section 501 of the Rehabilitation Act, any other law, or the CBA. Executive Order 13164, which requires all Federal agencies to implement and adopt RA procedures, explains in section 5(b) that the procedures are “intended only to improve the internal management of the executive branch and does not create any right or benefit, substantive or procedural, enforceable at law or equity by a party against the United States, [or] its agencies.”

2-12. Inquiries and Distribution

1. Any individual requiring further information concerning these procedures may contact the DPM via phone at 608-242-3701 or submit an inquiry using the DPM e-mail at ng.wi.wiarng.list.equal-opportunity@army.mil.
2. These procedures are posted on applicable workplace bulletin boards and available on the DMA website at https://dma.wi.gov/resources/equal-opportunity-and-equal-employment-opportunity-eo-eeo/.
3. These procedures will also be provided in alternative formats on an as-needed basis when requested by, or on behalf of, a WING applicant or employee.

CHAPTER 3

Personal Assistance Services (PAS) Request Procedures

3-1. Requesting Personal Assistance Services

1. Personal Assistance Services (PAS) may be requested at any time, either verbally or in writing, for assistance with performing ADLs that an individual would typically perform if they did not have a disability, and that is not otherwise required as a RA.
2. The process for requesting PAS is separate from requests for RA. However, the process of determining whether such services are required, and the agency’s right to deny such requests when a provision of the services poses an undue hardship, are the same as for the RA process and uses the same Request Form.
3. The WING is only required to provide PAS if:

1. An individual is an eligible T32 or T5 employee of the WING;
2. An individual has a targeted disability;
3. An individual requires the services because of their targeted disability; or,
4. An individual will be able to perform the essential functions of the job, without posing a direct threat to safety, once PAS and any required R A have been provided; and,
5. Providing PAS does not impose an undue hardship on the agency.

4. PAS are provided by a PAS provider. The agency may require PAS providers to perform services to more than one individual, and PAS providers may perform tasks unrelated to PAS, but only to the extent that doing so does not result in failure to provide PAS in a timely manner.
5. If the agency is utilizing a PAS provider who is assigned to a single individual, and if that individual prefers a particular provider (e.g., because the provider has worked with the individual in the past), the agency gives primary consideration to the employee’s choice to the extent permitted by law.
6. The agency is prohibited from taking adverse actions against job applicants or employees based on their need for, or perceived need for PAS.

APPENDIX A

Process Flow Chart for Reasonable Accommodations and Personal Assistance Services

Step 1

Recognize an Accommodation Request

• Employee and Supervisor complete the “Request Form” and submit it to the Disability Program Manager (DPM)

Step 2

Gather Information

• DPM, Service Medical Representative (SMR), Human Resources Officer (HRO), and the Manager/Supervisor review the request.

Step 3

Explore Accommodation Options

• Employee, SMR, Manager/Supervisor, and other subject matter experts review and identify effective accommodations.
• Accommodation is proposed to the Approval Authority (HRO).

Step 4

Determination of Accommodation

• Recommended accommodation is reviewed by Director/WING-level leader, Labor Relations Specialist (LRS), and State Judge Advocate (SJA)
• Approval Authority (HRO) provides determination to DPM.

Step 5

Implement the Accommodation

• DPM provides determination from HRO to Supervisor.
• Employee and supervisor ensure the approved accommodation is implemented.

Step 6

Monitor the Accommodation

• The DPM and SMR follow up with the employee and supervisor to determine if the implemented accommodation meets the needs of the employee and mission or if the needs have changed.

APPENDIX B

Wisconsin National Guard Reasonable Accommodation and Personal Assistance Forms

1. Request for Reasonable Accommodation or Personal Assistance Services
2. Recommendations and Reviews of Reasonable Accommodation or Personal Assistance Services
3. Determination of Accommodation Request
4. Information Reporting for Reasonable Accommodation
5. Medical Inquiry for Reasonable Accommodation

APPENDIX C

Resources for Reasonable Accommodations and Personal Assistance Services

1. Wisconsin National Guard Disability Program Manager (WING DPM). The DPM assist in processing reasonable accommodation and personal assistance services request for WING employees and applicants.

Email: ng.wi.wiarng.mbx.eo-disability-program@army.mil
Phone: 608-242-3701

2. Job Accommodation Network (JAN). One of several services provided by the U.S. Department of Labor’s Office of Disability Employment Policy. JAN consultants provide information, free-of-charge, about many types of reasonable accommodation and other disability-related issues. JAN experts can assist agencies in determining if a person’s limitations qualify for accommodation under the ADA and can help identify possible accommodations. JAN also provides an A-Z index for employers and employees to research accommodation solutions.

Website: https://askjan.org/index.cfm
Phone: 800-526-7234
TTY: 877-781-9403

3. Computer and Electronic Accommodation Program (CAP) of the Department of Defense. Agencies and persons with disabilities who require assistive technology can use CAP to research current accessible equipment. The WING DPM will assist with filing a technology request with CAP.

Website: https://cap.mil/
Phone (voice): (833) 227-3272 or (703) 614-8416
Videophone: (571) 384-5629 Email: cap@mail.mil

4. Americans with Disabilities Act (ADA) National Network. Consists of 10 regional centers with ADA specialists available to provide information and guidance pertaining to the Fair Housing Act, Individuals with Disabilities in Education Act, and the Rehabilitation Act. Each center works with local business, disability, governmental, rehabilitation and other professional networks to provide up-to-date ADA information and expertise in reasonable accommodation.

Website: https://adata.org/
Phone: 1-800-949-4232
Region 5 – Great Lakes Center
Phone: 312-413-1407 (V/TTY) *
Text/SMS: 872-298-1019
FAX: 312-413-1856
Email: adagreatlakes@uic.ed
Website: www.adagreatlakes.org
*Spanish: Oscar Gonzales: ogonza2@uic.edu

5. Registry of Interpreters for the Deaf. The Registry of Interpreters offers information on locating and using interpreters and transliteration services.

Region 3 – Midwest: Wisconsin RID Chapter
Website: https://rid.org/

6. U.S Access Board. Under the Architectural Barriers Act of 1968 (ABA) the U.S. Access Board requires federal facilities designed, constructed, altered, leased or financed by the United States after 12 Aug 1968 be accessible to individuals with disabilities.

Website: https://www.access-board.gov/

7. U.S. Equal Employment Opportunity Commission (EEOC). The EEOC’s Publication Center provides guidance and technical assistance documents on disability discrimination and the ADA.

Website: https://www.eeoc.gov/
https://www.eeoc.gov/eeoc-publications
Phone: 800-669-4000
TTY: 800-669-6820
Videocall: 844-234-5122
Email: info@eeoc.gov

8. Rehabilitation Engineering and Assistive Technology Society of North America (RESNA). RESNA offers a free, online tool to find highly qualified, RESNA certified, assistive technology professionals (ATP), seating and mobility specialists (SMS), and rehabilitation engineering technologists (RET) near you.

Website: https://www.resna.org/

APPENDIX D

References

1. Americans with Disabilities Act of 1990 (ADA), Titles I and V, as amended in 2008 (Americans with Disabilities Act Amendments Act (ADAAA).
2. Rehabilitation Act of 1973, Section 501 and 505, Public Law 93-112, (29 U.S.C. § 791), as amended.
3. Pregnant Workers Fairness Act, Public Law 117-328, 29 December 2022.
4. Genetic Information Nondiscrimination Act of 2008, Public Law 110-233.
5. Title 32, United States Code § 709 (d).
6. Title 10, United Stated Code §10508.
7. Title 29, Code of Federal Regulations Part 1602, Recordkeeping and Reporting Requirements under Title VII, The ADA and GINA.
8. Title 29, Code of Federal Regulations Part 1614, Federal Sector Equal Employment Opportunity.
9. Title 29, Code of Federal Regulations Part 1630, Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act.
10. Title 29, Code of Federal Regulations Part 1640, Procedures for Coordinating the Investigation of Complaints or Charges of Employment Discrimination Based on Disability Subject to the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973.
11. Title 29, Code of Federal Regulations Part 1641, Procedures for Complaints/Charges of Employment Discrimination Based on Disability Filed Against Employers Holding Government Contracts or Subcontracts.
12. Title 32 Code of Federal Regulations Part 56, Nondiscrimination on the Basis of Handicap in Programs and Activities Assisted or Conducted by the Department of the Army, 15 December 1993.
13. Executive Order 13164, Establishing Procedures to Facilitate the Provision of Reasonable Accommodation, 26 July 2000.
14. Executive Order 13548, Increasing Federal Employment of Individuals with Disabilities, 26 July 2010.
15. Equal Employment Opportunity Commission (EEOC) Policy Guidance on Executive Order 13164, Establishing Procedures to Facilitate the Provision of Reasonable Accommodation, 20 October 2000.
16. EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, 17 October 2002.
17. EEOC Management Directive 715, EEO Reporting Requirements for Federal Agencies, 1 Oct 2003.
18. EEOC Final Rule: Affirmative Action for Individuals with Disabilities in Federal Employment, 3 January 2017.
19. DoD Instruction 1020.04, Harassment Prevention and Response for DoD Civilian Employees, 30 June 2020.
20. CNGBI 9601.01, National Guard Discrimination Complaint Program, 27 September 2015.
21. CNGBM 9601.01, National Guard Discrimination Complaint Process, 25 April 2017.
22. AR 600-7, Nondiscrimination on the Basis of Handicap in Programs and Activities Assisted or Conducted by the Department of the Army, 10 March 2020.
23. AR 690-12, Equal Employment Opportunity and Diversity, Appendix C.,12 December 2019.
24. DAFI 36-2710, Equal Opportunity Program, Chapter 12 & 13, 23 May 2024.

GLOSSARY

Acronyms

ADA

Americans with Disabilities Act of 1990

ADAAA

Americans with Disabilities Act Amendments Act of 2008

ADL

Activities of Daily Living

AGR

Active Guard Reserve

ANG

Air National Guard

AO

Administrative Officer

ARNG

Army National Guard

CAP

Computer/Electronics Accommodation Program

CBA

Collective Bargaining Agreement

CFR

Code of Federal Regulation

COS

Chief of Staff

DoD

Department of Defense

DoDI

Department of Defense Instruction

DPM

Disability Program Manager

DS

Title 32 Dual Status Military Technician-Excepted Service

DOS

Director of Staff

EEO

Equal Employment Opportunity

HR

Human Resources

HRI

Human Resource Instruction

HRO

Human Resources Office

IAW

In Accordance With

JCS

Chief of Staff – Joint Staff

KSAB

Knowledge, Skills, Abilities, and Behaviors

LRS

Labor Relations Specialist

MSC

Major Subordinate Command

MSPB

Merit Systems Protection Board

NG

National Guard

NGB

National Guard Bureau

OPM

U.S. Office of Personnel Management

PAS

Personal Assistance Services

PWFA

Pregnant Worker Fairness Act

RA

Reasonable Accommodation

SEEM

State Equal Employment Manager (EEO Director)

SJA

State Judge Advocate

SME

Subject Matter Expert

SMR

Service-Component Medical Representative

T5

Title 5 United States Code (Competitive or Excepted Service)

T32

Title 32 United States Code Dual Service Technicians

TAG

The Adjutant General

USC

United States Code

WING

Wisconsin National Guard

Definitions

Appeal – The second step in the reconsideration and appeal process in which an individual can appeal the decision of their RA request after an unsuccessful reconsideration. The appeal authority is the JCS. See ‘Reconsideration’ for the first step in the reconsideration and appeal process.

Applicant – A person who has applied, or would like to apply, for a Title 5 or Title 32 dual status position of employment with the WING.

Decision Maker – A WING official with the authority to make a determination on the approval or denial of a RA request. The decision maker/approval authority is most often the Director or Assistant Director of the HRO.

Denial – A determination by the decision maker to not provide a request for a specific RA where the decision maker does not offer an alternative RA or where the requester declines an alternate RA offered by the decision maker. All proposed RA denials are reviewed by the SJA prior to determination.

Direct Threat – A significant risk (high probability) of substantial harm to the health or safety of the employee or to others that cannot be eliminated or reduced by a RA. The agency must engage in the individualized assessment that is based on the medical documentation and the best available objective evidence. Thus, the decision cannot be based on assumptions, unwarranted fears, generalizations, stereotypes, or myths about a particular disability.

Disability – With respect to an individual, (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, which means the individual has subject to an action prohibited by the ADA as amended because of an actual or perceived impairment that is not both “transitory and minor.”

Effective – The accommodation provided does not need to be the one that is requested, but if an alternative is suggested by the agency, the alternative accommodation must be effective in meeting the needs of the individual by addressing the barrier created by the functional limitations.

An example of an effective accommodation for a deaf individual who does not use sign language is real-time captioning that accurately records what is said. An ineffective accommodation is captioning that was garbled or having a co-worker share meeting notes at the end of a meeting. If a deaf employee who relies on sign language requests an interpreter, providing an employee who knows some signs or asking the employee to read lips is not effective.

If a reader is hired as an accommodation for an employee who is blind, the employee must be able to understand the speech of the reader. Similarly, giving the course materials to an employee in lieu of her taking supervisory skills training, because the building is not physically accessible, is not effective. When there are two or more accommodations that are equally effective, the agency may choose the one that is easier or less expensive to provide. If more than one accommodation is effective, the preference of the employee should be given consideration. However, the agency has the ultimate discretion to choose between effective accommodations.

Employee – A person employed by the WING as a Title 5 employee or Title 32 dual status technician (Department of the Army or Department of the Air Force).

Essential Functions – Job duties that are so fundamental to the position an individual cannot do the job without being able to perform them. A function can be essential if, among other things: (1) the position exists specifically to perform the function; (2) there are a limited number of employees available among whom the performance of that specific job function can be distributed; or (3) the function is highly specialized and the incumbent in the position is hired for their expertise or ability to perform that particular function.

Extenuating Circumstances – Factors beyond the agency’s control that could not reasonably have been anticipated or avoided in advance of the RA or PAS request which make it impossible for a RA to be provided within a time frame. Examples of extenuating circumstances include, but are not limited to, delays encountered when ordering equipment that must be backordered, the vendor normally used had gone out of business, or there are unexpected delays by the vendor or CAP. The absence of the DPM, or other essential interactive team member, is not considered to be an extenuating circumstance and should not delay the processing of a request.

Individual with a Disability – An individual who has one or more of the following: (1) a physical or mental impairment that substantially limits one or more major life activities of the individual; (2) a record of such impairment; or (3) is regarded as having such an impairment. This is viewed in the broad sense and not analyzed extensively.

Interactive Process – An interactive communication process with an employee who has requested an accommodation (or otherwise indicated a need) to clarify the specific nature of the disability and identify the appropriate RA. This may include asking relevant questions that enables the supervisor or management official to make an informed decision regarding the WING’s accommodation responsibilities in a specific situation.

Light Duty – Generally, light duty refers to temporary or permanent work that is physically or mentally less demanding than normal job duties. When an employee has been injured on the job but wishes to return to work, light duty can be offered. There is no obligation to create a light duty position for an employee with a disability or injury that was not acquired on the job.

Major Life Activities – Include, but are not limited to, the following: (1) in general, care for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working; (2) the operation of a major bodily function, including functions of the immune system, special sense organs and the 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.

Personal Assistance Services – Services to help individuals who, because of a targeted disability require assistance to perform basic ADLs, such as eating and using the restroom during work hours and job-related travel.

Physical or Mental Impairment – Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as the neurological, musculoskeletal, special sense organ, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine systems; or any mental of psychological disorder, such as an intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

Qualified Individual – With respect to an individual with a disability, means the individual satisfies the requisite skill, experience, education, and other job-related requirements of the employment position with or without RA.

Reasonable Accommodation – Any change in the workplace or the way work is customarily done to provide an EEO to an individual with a disability. While some items are not considered RAs (e.g., removal of an essential job function or personal use items such as a hearing aid needed on and off the job), RAs can cover most anything that enables an individual to apply for a job, perform a job, or have equal access to the workplace and employee benefits such as kitchens, parking lots, and office events.

RAs may include, but are not limited to: (1) modifications or adjustments to a job application process to enable a qualified applicant with a disability to be considered for the position; (2) changes to the work environment or to the manner or circumstances under which the position held or desired is customarily performed, to enable a qualified individual with a disability to perform the essential functions of that position; or (3) modifications or adjustments to enable an employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by other similarly situated employees without disabilities. Common types of accommodations include, but are not limited to:

• Modifying work schedules or supervisory methods
• Granting breaks or providing leave
• Altering how or when job duties are performed
• Removing and/or substituting a non-essential job function
• Moving to a different office space or altering the office space
• Providing telework
• Making alterations to workplace policies
• Providing assistive technology, including information technology and communications equipment approved by the J6
• Providing specially designed furniture
• Providing a reader or other staff assistant to enable employees to perform their job functions, where the accommodation cannot be provided by current staff
• Removing an architectural barrier, including reconfiguring workspaces.
• Providing alternative parking solutions
• Providing materials in alternative formats (e.g., larger print, braille, or printed media)
• Providing non-competitive reassignment to another position for the individual is qualified as a last resort accommodation

Record of Impairment – A history of or having been classified (or misclassified) as having a mental or physical impairment that substantially limits one or more major life activities.

Regarded as Having an Impairment or Disability – An individual is “regarded as having a disability” if the individual has been subjected to an action prohibited by the ADAAA because of an actual or perceived impairment/disability that is not both transitory and minor.

Reconsideration – The first step in the reconsideration and appeal process in which an individual can request the HRO to reevaluate the RA request. See ‘Appeal’ for the second step in the reconsideration and appeal process.

Religious Accommodation – A change based on an employee’s sincerely held religious belief when a policy, practice, or duty substantially burdens the expression of that belief. Religious accommodations are processed by the Chaplain’s Office or Religious Support Office.

Requester – The person who requests the RA or PAS. The requester can be the disabled applicant or employee, a family member, healthcare professional, or other representative of the disabled applicant or employee.

Substantial Limitation – A condition that creates a sufficiently severe impairment or disability that limits a major life activity or major bodily function as compared to most people in the general population. It should be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADAAA.

Targeted Disability – A subset of the larger disability category. The federal government has recognized that qualified individuals with certain disabilities, particularly manifest disabilities, face significant barriers to employment, above and beyond the barriers faced by people with the broader range of disabilities.

Transitory and Minor – If an impairment is both transitory (temporary) and minor (does not affect any major life activities), the agency is not required to provide an accommodation. The agency must provide evidence that the impairment is actually transitory and minor. If the disability substantially limits one or more major life activities, there is no minimum duration that the disability must last.

Undue Hardship – A significant difficulty or expense incurred by the WING when considering an accommodation. In determining whether an accommodation imposes an undue hardship, factors to be considered include: (1) the nature and net cost of the accommodation needed; (2) the overall financial resources of the agency involved in the provision of the RA, the number of persons employed at the agency, and the effect on expenses and resources; (3) the type of operations, including the composition, structure, and functions of the workforce and the geographic separateness and administrative or fiscal relationship of the facility or facilities in questions; and (4) the impact of the accommodation on the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business.

Workplace Accommodation – Any change in the workplace or the way work is customarily done to provide an accommodation for a temporary condition.