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Review Of OFCCP’s New Reasonable Accommodation Pocket Card

October 23, 2015

By Michael G. McClory

On Monday, OFCCP released a new “training” tool ~ the “Requesting a Reasonable Accommodation” pocket card.  OFCCP’s press release said that the pocket card “helps applicants, employees and other interested parties understand the process for requesting a reasonable accommodation.”  After an overview of the contents of the pocket card, The Bullard Edge considers three of its shortcomings and the big picture.
What The Pocket Card Says
OFCCP’s pocket card is not really a card.  It is actually four attached cards that fold up into the size of a driver’s license.  This means there are eight sides (counting front and back).
In Q&A style, OFCCP’s pocket card sets out four questions related to “seeking a reasonable accommodation” and responds to those questions using “simple” language.  Here are the questions:
  • What is a reasonable accommodation?
  • How do I request a reasonable accommodation?
  • What do I need to tell my employer?
  • What happens after the request is made?
The responses to the questions are simple overviews.  For example, in response to the question about what an employee needs to tell his/her employer OFCCP says, “Simply tell your employer that you need an adjustment or change at work due to a disability.”
Shortcomings Of The Pocket Card
OFCCP clearly has opted for simplicity.  The agency leaves the details out, with the apparent goal of giving employees just enough information to realize that they have the right to seek reasonable accommodation.
That is a worthy goal, but The Bullard Edge sees three glaring shortcomings in the execution.
  1. The pocket card is too simple.  Here is an example of simplicity that begs more questions than it answers.
Question: “How do I request a reasonable accommodation?” 
Answer: “Typically, just ask.”
The information on the pocket card’s panels is not incorrect; it is just incomplete to the point that an employee reading the card is not likely to know what to do.  Among other things, the pocket card does not define some of the terms that are important (e.g., disability) and does not unambiguously instruct employees to familiarize themselves with employer policies.
  1. There is no mention of the interactive process.  While OFCCP may seem to some like it is attempting to grab turf from EEOC, which is the ADA enforcement agency, the OFCCP has actually been in the business of disability discrimination compliance for a longer period of time.  OFCCP enforces Section 503 of the Rehabilitation Act of 1973.  Section 503 prohibits federal contractors and subcontractors from discriminating in employment against individuals with disabilities, and requires covered employers to take affirmative action to recruit, hire, promote, and retain these individuals.
With that in mind, it is surprising that the pocket card does not alert readers that the process of identifying a reasonable accommodation very often requires an “interactive process” between employee and employer.  This is the key to addressing all but the most obvious accommodation requests.
As stated in OFCCP’s Section 503 regulations, “To determine the appropriate reasonable accommodation it may be necessary for the contractor to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation.”  If the pocket card at least mentioned the interactive process it would position employees requesting accommodation to be ready to participate fully and to avoid unnecessary breakdowns in the interactive process.
  1. The pocket card is unlikely to reach its target audience.  The pocket card is intended to alert applicants and employees to their rights.  However, neither applicants nor employees who do not already know their rights are likely to have copies of the card.  It is not downloadable and is not widely distributed.  In fact, in its email announcement of the pocket card OFCCP stated that the way to obtain a copy of the card would be to call OFCCP’s Help Desk.  Anyone who takes the time to call the Help Desk will have already found the basic pocket card information online.
The Big Picture
The Requesting a Reasonable Accommodation pocket card is just one of a number of steps that OFCCP has undertaken to promote employment opportunities for individuals with disabilities (see here, here and here).  While reasonable folks may disagree over some of the details (management-side attorneys occasionally disagree with enforcement agency interpretations and actions), it seems clear to The Bullard Edge that OFCCP is committed to improving and increasing employment opportunities for individuals with disabilities and has taken a number of productive steps towards accomplishing this laudable goal.  (Like OFCCP, EEOC also deserves credit for the same commitment and productive effort.) 
Best regards,

The Bullard Edge