Administrative Rules of the State of Montana

BEFORE THE DEPARTMENT OF ADMINISTRATION

OF THE STATE OF MONTANA

In the matter of the adoption of new rules I through XX pertaining to reasonable accommodations and equal access

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NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION

TO: All Concerned Persons

1. On July 8, 2011, at 10:00 a.m., the Department of Administration will hold a public hearing in Room 136 of the Mitchell Building, at 125 N. Roberts Street, Helena, Montana, to consider the proposed adoption of the above-stated rules.

2. The Department of Administration will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact the department no later than 5:00 p.m. on June 29, 2011, to advise us of the nature of the accommodation that you need. Please contact John Pavao, Department of Administration, P.O. Box 200127, 125 N. Roberts Street, Helena, MT 59620-0127; telephone (406) 444-3984; Montana Relay Service 711; FAX (406) 444-0703; or e‑mail [email protected].

3. The department proposes to adopt the following rules:

RULE I SHORT TITLE (1) This subchapter may be cited as Reasonable Accommodations and Equal Access Policy.

AUTH: 2-18-102, MCA

IMP: 2-18-102, MCA

STATEMENT OF REASONABLE NECESSITY: It is necessary to provide a title for the rules to allow employees and citizens to easily recognize and access them.

RULE II POLICY AND OBJECTIVES (1) The rules in this subchapter establish the minimum requirements for providing reasonable accommodations, reasonable modifications, and equally effective communication for persons with disabilities as for persons without disabilities consistent with:

(a) the Americans with Disabilities Act of 1990 (ADA);

(b) ADA Amendments Act of 2008;

(d) Montana Human Rights Act, Title 49, MCA;

(e) Governmental Code of Fair Practices provided in Title 49, chapter 3, MCA; and

(f) Rights of Persons with Disabilities provided in Title 49, chapter 4, MCA.

(2) This subchapter covers all agencies in Montana's executive branch except:

(a) the Montana University System;

(b) the Montana State Fund;

(d) personal staff of elected officials; and

(e) any other position specifically excluded under 2-18-103 and 2-18-104, MCA.

AUTH: 2-18-102, MCA

IMP: 2-18-102, 49-2-101, 49-2-303, 49-3-101, 49-3-201, MCA

STATEMENT OF REASONABLE NECESSITY: These rules are proposed as the minimum necessary to comply with the laws listed. However, if agencies have reason to impose even stricter standards, they should have that flexibility. The department believes it is important to reference federal and state laws, regulations, and policies that serve as the primary source documents for establishing the standards set forth in these rules. This gives the reader information on where they can find additional information. It is also important for readers to understand that these rules apply to the executive branch of state government, because the department has rulemaking authority for personnel matters, but not over the entities excluded. Other state entities may adopt these rules or adopt their own internal policies and procedures for preventing and addressing discrimination and harassment.

RULE III DEFINITIONS (1) The department adopts and incorporates the definitions in Title I and Title II of the ADA, as amended by the ADA Amendments Act of 2008 (P.L. 110-325), effective January 1, 2009, 42 USC 12102, 12103, 12111, and 12131, which set forth all definitions applicable to the law, except those defined under this rule. A copy of these definitions may be obtained by contacting the department at the address provided in [RULE XVI] or at http://www.ada.gov/pubs/adastatute08.htm.

(2) The following definitions also apply to this subchapter:

(a) "Designated personnel" means agency representatives identified in these rules as those responsible for processing reasonable accommodation requests including agency managers, ADA coordinators, Equal Employment Opportunity (EEO) officers, human resource staff, and individuals involved in the hiring process.

(b) "Extenuating circumstances" means circumstances beyond management's control and may include time spent waiting for medical documentation, special equipment, modifications to a work area, or other factors.

AUTH: 2-18-102, MCA

IMP: 2-18-102, MCA

STATEMENT OF REASONABLE NECESSITY: This rule adopts and incorporates federal ADA definitions to promote a consistent application of key terms and concepts. The department has taken this approach because the ADA's definitions are thorough and well-accepted. It would serve no purpose for the department to draft its own definitions.

The rule defines other key terms used in the rules, but not specifically defined under the law, to clarify the language used in these rules and to promote a consistent understanding and application of the rules. The definitions of "designated personnel" and "extenuating circumstances" are necessary to allow reference to those terms rather than restating the list of persons or circumstances each time one is used. This helps with the word flow and understanding.

RULE IV REASONABLE ACCOMMODATIONS (1) Agency managers shall provide reasonable accommodations to qualified individuals with disabilities in all aspects of employment unless doing so would cause undue hardship.

(2) Agency managers shall encourage employees and applicants with disabilities to request reasonable accommodations at any time they identify a barrier to employment. A barrier may include a policy, procedure, or workplace arrangement preventing applicants from effectively competing for a position and employees from performing essential functions of their position or receiving benefits of employment.

(3) The obligation to provide reasonable accommodations applies to all aspects of employment. This responsibility is ongoing and a reasonable accommodation may become necessary any time a person's disability or job changes.

AUTH: 2-18-102, MCA

IMP: 2-18-102, 49-2-101, 49-3-101, MCA

STATEMENT OF REASONABLE NECESSITY: This rule provides guidance to agency managers regarding their specific responsibilities to provide reasonable accommodations to qualified applicants and employees with disabilities and to address and minimize potential barriers to employment. Managers must understand their responsibilities to promote compliance with applicable state and federal laws and regulations to avoid potential liability incurred by noncompliance.

Section (1) states the fundamental requirements of the ADA that the state must follow. The phrases "reasonable accommodations," "qualified individual with disabilities," and "undue hardship" are defined in Title I of the ADA and used in the Montana Human Rights Act. See Title 49, MCA.

Section (2) places an obligation on agency managers to encourage employees and applicants with a disability to request reasonable accommodations when necessary. The department took this proactive approach because many times these persons will be hesitant to ask for an accommodation even though barriers exist preventing applying and competing for a job or, once on the job, inhibiting effective job performance. Encouragement from management will help overcome barriers.

Section (3) emphasizes that the obligation to provide reasonable accommodations applies throughout employment. This emphasis is important because conditions can and do change, and agency managers need to know that reasonable accommodations must be adapted to the changing conditions. Remaining silent on this point would tend to misguide managers, letting them believe that once an accommodation is made the obligation ends.

RULE V REQUESTING REASONABLE ACCOMMODATIONS

(1) Employees or applicants with a disability may request reasonable accommodations through any one of the designated personnel.

(2) Reasonable accommodation requests may be oral or in writing and do not have to include the words "reasonable accommodation" or "disability." Employees may simply indicate they are having difficulty performing their job or applying for a position because of a disability.

(3) Family members, friends, health care professionals, or other representatives may request reasonable accommodations on employees' or applicants' behalf.

(4) There are no time limits for requesting an accommodation; however, employees should not wait for an impairment to affect their job performance before requesting an accommodation. Employees are encouraged to communicate with agency management about performance issues as soon as they realize the need for an accommodation.

AUTH: 2-18-102, MCA

IMP: 2-18-102, MCA

STATEMENT OF REASONABLE NECESSITY: This rule provides guidance to applicants and employees on how and when to request a reasonable accommodation. Making more than an immediate supervisor available to receive a request is necessary to ensure the employee has the opportunity to make the request to someone with whom they feel comfortable talking and who hears what the employee is saying. This rule is important to help applicants and employees understand their right to request a reasonable accommodation at any time they identify the need. The department believes it is important to make it as easy as possible for applicants and employees to request a reasonable accommodation. Consistent with this approach, the department has proposed that oral requests are acceptable, that no "magic words" are necessary to request a reasonable accommodation, and that certain representatives of applicants and employees may make the requests. An alternative approach was to require that applicants and employees make their requests in writing. This approach has some merit because it would provide a record in the applicants' or employees' own words regarding the accommodation needed. In the end, the department believes that the easier the process, the more effective the reasonable accommodation will be.

Allowing others to request a reasonable accommodation on an employee's behalf is necessary when the employee is incapable of making the request for some reason. Also, experience has shown that many times an applicant or employee will be hesitant to raise the issue because they fear it will hurt them in the application process or in their jobs. Allowing a representative to broach this issue will facilitate the communication process.

The department also proposes that there be no time limits for requesting an accommodation, consistent with the ADA, and to aid in helping the employee succeed at their job. The rule is necessary to inform employees they should not wait to request a reasonable accommodation until a disciplinary action happens because a disability is not an excuse for failure to perform essential job functions.

RULE VI RESPONDING TO REASONABLE ACCOMMODATION REQUESTS (1) Designated personnel who receive reasonable accommodation requests shall promptly notify their agency ADA coordinator of the request.

(2) If the request comes from someone other than an agency manager, the ADA coordinator shall inform the appropriate manager and provide assistance throughout the reasonable accommodation process. With assistance from the ADA coordinator, the agency manager shall:

(a) participate in an informal dialogue (known as the interactive process) with the employee or applicant;

(b) periodically follow up with the employee or applicant on all reasonable accommodation requests; and

(c) approve or deny the request within 30 working days following the initial request, unless extenuating circumstances exist.

(3) Designated personnel shall always consider an employee's or applicant's requested accommodation; however, they may elect another reasonable accommodation if it would effectively allow the employee to perform the essential functions of the job or allow an applicant to compete for a position.

(4) Employees may refuse the elected accommodation; however, if the employee cannot perform the essential functions of the job, with or without the accommodation, the employee may not be qualified for the position.

AUTH: 2-18-102, MCA

IMP: 2-18-102, MCA

STATEMENT OF REASONABLE NECESSITY: This rule is needed to provide guidance to agency managers, human resource professionals, EEO officers, and ADA coordinators as to their specific duties and responsibilities when responding to reasonable accommodation requests. Involving the ADA coordinator is important because this person has the expertise to help the agency and the person making the request. Involving the agency manager emphasizes that it is the manager's, not a subordinate's, job to ensure the law is followed. Delegating the task to others will likely lead to a de-emphasis of the ADA responsibilities. Importantly, failure to respond to a reasonable accommodation request could result in a violation of state and federal laws prohibiting disability discrimination.

Section (3) allows the designated personnel to elect an alternative reasonable accommodation. This approach was taken because the accommodation suggested by the applicant or the employee may be too expensive or unworkable for management.

Finally, the proposed rule allows the employee to refuse an accommodation. The alternative would be to mandate accepting the employer recommendation. This alternative was not adopted because employees cannot be forced to use a particular reasonable accommodation. However, the rule makes clear the employee must be able to perform the essential functions of the job or risk being terminated for cause.

RULE VII PARTICIPATING IN THE INTERACTIVE PROCESS (1) Agency managers shall participate in the interactive process until they identify an effective accommodation or determine a reasonable accommodation is not possible. Failure to participate in the interactive process could result in a delay or failure to provide a reasonable accommodation.

(2) When an employee or applicant requests a reasonable accommodation, the dialogue between designated personnel and the employee may include the following:

(a) a discussion of the employee's specific limitations;

(b) how the limitation affects the employee's performance;

(d) possible accommodations; and

(e) if implemented, whether the accommodation was effective.

(3) The extent of the dialogue between designated personnel and the employee or applicant may vary because of the nature of an individual's disability or their specific request. If the disability and the need for an accommodation are obvious, the discussion may be brief. In some cases, the agency manager may need to ask questions about the nature of the individual's disability and the individual's functional limitations in an effort to identify an effective accommodation.

(4) Designated personnel shall limit discussion with applicants to the individual's specific request, their inability to participate in a particular selection process, and possible accommodations.

(5) Designated personnel may not ask probing questions likely to disclose genetic information in compliance with ARM Title 2, chapter 21, subchapter 40, Equal Employment Opportunity, Nondiscrimination, and Harassment Prevention Policy.

AUTH: 2-18-102, MCA

IMP: 2-18-102, MCA

While it may seem unnecessary to suggest that managers speak to employees with a disability about reasonable accommodations, the rule is necessary because managers are afraid to broach the subject for fear of violating the employee's rights under the ADA. The department has not proposed that the specifics of the conversation be mandated because each situation is different. Sometimes the disability and solution are obvious. Other times neither is obvious and the discussion must be more exploratory to find an accommodation that will work.

In the case of a job applicant, addressed in (4), the conversation must be limited to the applicant's specific needs to participate in the selection process. Further questioning may be construed as discriminatory if the person is not successful in getting the job.

RULE VIII DOCUMENTING REASONABLE ACCOMMODATION REQUESTS (1) Agency managers shall document all reasonable accommodation requests and their contact with designated personnel. Documentation must include the following:

(a) accommodation requested and discussed;

(b) impact of the impairment on the employee's ability to perform their job or an applicant's ability to participate in the selection process;

(d) decisions made and actions taken.

AUTH: 2-18-102, MCA

IMP: 2-18-102, MCA

STATEMENT OF REASONABLE NECESSITY: This rule provides guidance to agency managers, human resource professionals, EEO officers, and ADA coordinators as to their specific duties and responsibilities when responding to reasonable accommodation requests. Careful documentation is necessary to demonstrate what actions management has taken to respond to a reasonable accommodation request. It may demonstrate a good-faith effort when management has appropriately responded to a request or to provide accountability when they have not.

RULE IX REQUESTING MEDICAL DOCUMENTATION (1) Medical examinations must be job-related and consistent with business necessity.

(2) Agency managers may request documentation from an appropriate health care professional when the need for a reasonable accommodation is not known or obvious. If an agency manager requests medical documentation, the manager shall:

(a) provide the request to the applicant or employee in writing;

(b) explain the need for documentation and limit the request to information about the individual's disability, functional limitations, and the need for a reasonable accommodation to perform the essential functions of the job;

(c) include a statement to the applicant, employee, or health care provider to not provide genetic information as specified under ARM Title 2, chapter 21, subchapter 40, Equal Employment Opportunity, Nondiscrimination, and Harassment Prevention Policy;

(d) not request more information than required to support the need for a specific type of accommodation; and

(e) not request documentation when the disability and the need for a reasonable accommodation are obvious or when the individual has already provided sufficient information to substantiate their need for a reasonable accommodation.

(3) If the individual does not provide the requested documentation, agency managers are not required to provide an accommodation. Agency managers may make exceptions if extenuating circumstances prevent the individual from providing the documentation.

(4) Agency managers shall document the time exhausted while waiting for documentation. This time will not count against the agency's 30-working-day timeline to process the request.

(5) If an individual provides insufficient documentation, the agency manager shall explain why the documentation was insufficient and allow additional time to provide sufficient documentation.

(6) Agency management may require an individual to go to a health care professional of the agency's choice when the individual fails to provide sufficient documentation. If management requires an individual to go to a health care provider, the agency shall pay costs associated with the visit.

(7) If an employee chooses not to see a health care professional of the agency's choice and fails to provide sufficient documentation, agency managers are not required to provide an accommodation.

AUTH: 2-18-102, MCA

IMP: 2-18-102, MCA

STATEMENT OF REASONABLE NECESSITY: This rule provides guidance to agency managers, human resource professionals, EEO officers, and ADA coordinators as to their duties and responsibilities when responding to reasonable accommodation requests. In those cases where the need for an accommodation is not known or obvious, medical information will help both the employer and the employee select the best accommodation. Without the ability to seek this information, an accommodation will likely not meet the employee's needs, or an accommodation may not be made at all. Given that medical information is private under Montana law, the department also believes it is important to clarify for managers the boundaries that exist regarding disclosure of information. The laws are evolving, and it is important that the state clearly communicate the rights and obligations regarding personal medical information, which is private under Montana law. For example, it is important to educate managers that under federal law genetic information may not be disclosed. If the medical information is not provided or the employee refuses the request to see a health care professional, the department has taken the approach of allowing the agency to refuse the accommodation. This approach was taken because without a solid baseline of information, the agency and the employee will be guessing what the best reasonable accommodation is. An alternative approach would be to require the agency to provide a reasonable accommodation even if necessary medical information is not provided. This approach would waste time and money and would harbor frustration for everyone.

RULE X APPROVING REASONABLE ACCOMMODATION REQUESTS

(1) Agency managers shall serve as the approval authority for all reasonable accommodation requests.

(2) If agency managers determine the request is reasonable, they must:

(a) grant the request and notify the employee or applicant in writing of their decision;

(b) implement the accommodation as soon as practical;

(d) continue the interactive process if the accommodation is not effective, the need for the accommodation has changed, or the job has changed; and

(e) continue the interactive process until they find an alternative or determine it is not possible to provide a reasonable accommodation.

AUTH: 2-18-102, MCA

IMP: 2-18-102, MCA

STATEMENT OF REASONABLE NECESSITY: Complying with ADA is the law and therefore is important. To emphasize this importance, the proposed rule places the responsibility on agency managers, not subordinate employees, to ensure that reasonable accommodation requests are handled. This is not to say that others may not assist the manager, but managers must know that the ultimate responsibility is theirs. An alternative would be to allow some other person to handle the job, but this would tend to erode the importance of complying with the law.

The department also believes that outlining the manager's responsibilities will prevent the requests for reasonable accommodations from remaining unfinished and prevent management from avoiding final decisions, thus avoiding liability. The department also requires follow-up to ensure the decision continues to be effective. Without this guidance, compliance with ADA will be spotty and inconsistent, a result that is unacceptable.

RULE XI REASSIGNING AN EMPLOYEE AS A REASONABLE ACCOMMODATION (1) When an employee with a disability can no longer perform the essential functions of their position with or without a reasonable accommodation, the agency manager shall consider reassigning the employee to an equivalent vacant position unless doing so would create an undue hardship. The employee shall concur with the reassignment.

(2) When reassigning an employee to a vacant position as a reasonable accommodation, agency managers shall:

(a) do so without a competitive process;

(b) consider any implications under a seniority system of a collective bargaining agreement;

(c) attempt to reassign a qualified employee to a vacant position equivalent in pay, status, and other relevant factors (e.g., benefits, geographical location); and

(d) continue the interactive process after reassigning an employee to ensure the employee is able to perform the essential functions of the job, with or without a reasonable accommodation.

(3) If reassigning an employee would violate a seniority system or collective bargaining agreement, it may not be reasonable to reassign an employee.

(4) If an equivalent vacant position is not available, management may reassign the employee to a lower-pay position, provided the employee is qualified and agrees to the transfer.

(5) "Vacant" means the position is available when the employee asks for an accommodation, or the employer knows a position will become available within a reasonable amount of time. Agency managers shall determine a reasonable amount of time on a case-by-case basis.

(6) Agency managers are not required to create a new position as a reasonable accommodation.

AUTH: 2-18-102, MCA

IMP: 2-18-102, MCA

STATEMENT OF REASONABLE NECESSITY: Sections (1) through (4) and (6) of the proposed rule address ADA requirements. The department believes this rule is necessary because managers should understand the ADA requires the employer to consider reassigning an employee to a vacant position. In particular, the criteria under (2), (3), and (4) provide guidance regarding the reassignment process and the interaction between the potential reassignment and seniority system and collective bargaining. The department believes this approach of explicitly identifying the criteria is preferable to remaining silent on the issue because the managers are not ADA experts and may not know this vacancy requirement exists. Having the rule will also promote a consistent approach when addressing vacancy issues.

The proposed rule defines "vacant" because this is not a self-evident term in the ADA context. The definition is taken from the ADA regulations. The department saw no need to craft its own definition because the federal definition meets the department's purposes.

RULE XII DENYING REASONABLE ACCOMMODATION REQUESTS (1) If agency managers determine they cannot reasonably accommodate a request or an accommodation would create an undue hardship, they shall forward the recommendation to their division administrator. If the division administrator is the manager receiving the request, the administrator shall make the recommendation to their supervisor.

(2) If the division administrator or higher-level manager concurs with the recommendation, the administrator or manager shall notify the employee or applicant in writing within 30 working days of the initial request.

(3) The written notification must include an explanation for the denial and the appeal process.

AUTH: 2-18-102, MCA

IMP: 2-18-102, MCA

STATEMENT OF REASONABLE NECESSITY: This rule is necessary to require managers to receive their supervisor's concurrence before they deny a reasonable accommodation request to ensure it is the correct decision, thereby avoiding liability. This approach was taken because the department believes it is important for the agency as a whole to establish an appropriate level of authority and accountability within the department when denying a request.

The 30-day time limit will ensure that requests are acted on promptly. Otherwise, a delay may increase liability exposure under the ADA. The department proposes 30 days, as opposed to a lesser or greater time period, because experience has shown it normally takes this time to fairly address an employee's request.

Finally, the written notification provides closure and a record of the decision and educates the employee or applicant regarding appeal rights. An oral notification would create a breeding ground for errors and misunderstandings.

RULE XIII DISCHARGING EMPLOYEES WITH DISABILITIES (1) Agency managers may consider discharging an employee with a disability when the employee is no longer able to perform the essential functions of their job with or without a reasonable accommodation, and they have ruled out all possible options.

(2) If denial of a reasonable accommodation results in the discharge of an employee, the appeal process outlined in ARM Title 2, chapter 21, subchapter 65, Discipline Policy or applicable collective bargaining agreement will supersede the reasonable accommodation appeal process.

AUTH: 2-18-102, MCA

IMP: 2-18-102, MCA

STATEMENT OF REASONABLE NECESSITY: The ADA is not an absolute law. This proposed rule outlines the circumstances under which employees may be discharged when they cannot perform the essential functions of the job with or without an accommodation. This approach is consistent with the ADA. Allowing an employee to stay on the job when the work cannot be performed would be a disservice to the taxpayers, other employees, and the employee. Since the department has already established an appeal process for employee terminations under ARM Title 2, chapter 21, subchapter 65, Discipline Policy, the department proposes using that appeal process, in lieu of the reasonable accommodation appeal process, to promote a fair and consistent approach to handling termination appeals.

RULE XIV APPEALING DENIAL OF REASONABLE ACCOMMODATION REQUESTS (1) The department head shall serve as the appeal authority for all denials.

(2) Employees and applicants wishing to appeal a denial shall submit a written request, along with supporting documents, to the department head within 15 working days from the time they receive the denial letter.

(3) The department head shall work with the appropriate agency manager, the ADA coordinator, and human resources manager to review pertinent information and the rationale for denial.

(4) Upon completion of the review, the department head shall:

(a) deny the request, approve the request, or refer it back to management for further action; or

(b) notify the employee or applicant of their decision in writing within 15 working days of receiving the appeal.

(5) If the department head denies the appeal, the written notification must include an explanation for the denial and information on the right to file a complaint with the Montana Human Rights Bureau, Department of Labor and Industry.

(6) Employees and applicants may contact the Montana Human Rights Bureau at (406) 444-2884 or (800) 542-0807 or the federal Equal Employment Opportunity Commission at (800) 669-4000 to file a complaint.

AUTH: 2-18-102, MCA

IMP: 2-18-102, 49-2-101, 49-2-501, 49-3-102, 49-3-301, MCA

STATEMENT OF REASONABLE NECESSITY: This rule is necessary to give the employee and management the opportunity within a reasonable time period to reconsider the accommodation request a final time to lessen the chance of error and a complaint in another forum. This approach is preferable to one that totally relies on the manager's decision. The department believes that the department head is the appropriate final internal appeal authority because that position is where the buck stops. An alternative would be to have an outside person review the appeal but that would entail additional expense, and, if the employee does not agree with the department head, the employee may file a complaint with the Montana Human Rights Bureau and/or the Equal Employment Opportunity Commission.

RULE XV CONFIDENTIALITY REQUIREMENTS (1) Agency managers shall:

(a) treat all information related to an employee's or applicant's disability as confidential; and

(b) maintain disability-related information according to the requirements of ARM Title 2, chapter 21, subchapter 66, Employee Records Management Policy.

AUTH: 2-18-102, MCA

IMP: 2-18-102, MCA

STATEMENT OF REASONABLE NECESSITY: The department believes it is important to reemphasize management's responsibility to protect information related to an individual's disability or their reasonable accommodation. Disability-related information is extremely sensitive and deeply personal, and managers must protect it to the greatest extent possible to prevent liability under federal and state laws and regulations. The rule refers managers to the state's policy that addresses appropriate handling of disability-related documents to promote consistent compliance for safeguarding this sensitive information.

RULE XVI TRACKING AND REPORTING REASONABLE ACCOMMODATION REQUESTS (1) Agency ADA coordinators shall track reasonable accommodation requests using the Reasonable Accommodation Tracking Sheet at the State Human Resources Division web site: http://hr.mt.gov/hrpp/policies.mcpx and also available from the State Human Resources Division, Department of Administration, Room 125 Mitchell Building, 125 Roberts Street, P.O. Box 200127, Helena, MT 59620-0127, or telephone (406) 444-3871.

(2) ADA coordinators shall provide a quarterly summary of all reasonable accommodation requests to the State Human Resources Division no later than the fifteenthday of each quarter.

(3) The report must include the following information:

(a) total number of requests;

(b) whether requests were by employees or applicants;

(d) cost of accommodations;

(e) effectiveness of the accommodations;

(f) number of days to process the requests (including extenuating circumstances); and

(g) if denied, the reason for denial and whether the employee or applicant appealed.

(4) Data are for tracking purposes only and must not include confidential information such as names or references to medical conditions or impairments.

(5) The State Human Resources Division shall collect and analyze data to:

(a) assess program effectiveness;

(b) develop or modify existing policies, procedures and guides; and

AUTH: 2-18-102, MCA

IMP: 2-18-102, 49-3-205, MCA

STATEMENT OF REASONABLE NECESSITY: The department proposes this rule to fulfill the EEO requirement that states provide tracking reports containing the identified, nonconfidential information. Having this rule will provide guidance to agencies and will ensure reports are consistent from agency to agency. These reports will also help the State Human Resources Division to assess EEO program effectiveness and focus future training and prevention efforts to help the state avoid liability.

RULE XVII DISABILITY RETIREMENT (1) Employees with disabilities may be eligible for disability retirement benefits under 19-3-1002, MCA. Employees may contact the Montana Public Employee Retirement System at (877) 275-7372 (toll free) or (406) 444-3154 for more information.

AUTH: 2-18-102, MCA

IMP: 2-18-102, MCA

STATEMENT OF REASONABLE NECESSITY: This rule advises the employee about disability retirement in this context, which is necessary because it may be the best accommodation for the employee, and the employee may not be aware of it.

RULE XVIII REASONABLE MODIFICATION PROCEDURES (1) Agency managers shall make reasonable modifications to policies, practices, and procedures that deny, or have the potential to deny, equal access to individuals with disabilities, unless doing so would result in an undue burden or fundamentally alter a program, service, or activity.

(2) Anyone requesting to modify a policy, practice, or procedure may contact the office responsible for providing the program, service, or activity, including agency management, ADA coordinator, EEO officer, or human resources staff.

AUTH: 2-18-102, MCA

IMP: 2-18-102, 49-3-201, 49-3-205, MCA

STATEMENT OF REASONABLE NECESSITY: The proposed rule directs agency managers to change policies, practices, and procedures when necessary to accommodate a disability to make the work force more inclusive and to avoid liability. The ADA requires that employers assume this burden. The department believes that this requirement is important enough to also include it in rule.

RULE XIX EFFECTIVE COMMUNICATION PROCEDURES (1) Agency managers shall furnish auxiliary aids and services, upon request, to promote equally effective communication for people with disabilities, unless doing so would result in an undue burden or fundamentally alter the program, service, or activity.

(2) Anyone requiring auxiliary aids and services may contact the department directly responsible for providing the program, service, or activity, including agency management, ADA coordinator, EEO officer, or human resources staff.

(3) Agency managers may not charge individuals with disabilities to offset costs associated with providing required auxiliary aids and services.

(4) Agency managers are not required to provide personal use items such as wheelchairs, prescription eyeglasses, hearing aids, or personal services such as eating, toileting, or dressing.

AUTH: 2-18-102, MCA

IMP: 2-18-102, 49-3-201, 49-3-205, 49-4-202, 49-4-211, 49-4-503, MCA

STATEMENT OF REASONABLE NECESSITY: The department believes this rule is important to reaffirm the state's commitment to equal opportunity by emphasizing management's responsibility to provide equal access to programs, services, and activities to people with disabilities, as required by federal and state laws and regulations. An important element of fulfilling this responsibility is to ensure all written and spoken communications are equally effective for individuals with disabilities as for individuals without disabilities. In some cases, agency managers will need to provide written materials in alternative formats (e.g., Braille, large font, audible, etc.), sign language interpreters, or other assistive devices to provide equal access to their programs, services, and activities. Agency managers must understand they cannot charge customers for these services. Approximately fifteen percent of all Montanans have a disability and the number of requests for auxiliary aids and services is likely to increase as our population ages. Since the state will publish this document on a public domain, the rule helps promote compliance with the ADA's requirement to provide public notice about an individual's right to request auxiliary aids and services and the state's responsibility to provide equal access.

RULE XX RESPONSIBILITIES (1) The Department of Administration shall:

(a) periodically review and update, as needed, reasonable accommodation and equal access rules, processes, and procedures; and

(b) design and develop training for employees that includes reasonable accommodations, reasonable modifications, and effective communication processes and procedures.

(2) Agency managers shall:

(a) provide reasonable accommodations to known physical or mental limitations of otherwise qualified employees or applicants with disabilities unless doing so would create an undue hardship;

(b) make reasonable modifications to policies, practices, or procedures unless doing so would create an undue financial or administrative burden or fundamentally alter the nature of a service, program, or activity;

(c) offer equally effective communications to people with disabilities and post public notice statements in areas frequented by employees and the public and on the agency's web site to increase awareness of individual rights and the state's responsibilities under the ADA;

(d) include a reasonable accommodation statement in all job listings; and

(e) provide a copy of these rules to all employees.

AUTH: 2-18-102, MCA

IMP: 2-18-102, 49-3-201, 49-3-205, MCA

STATEMENT OF REASONABLE NECESSITY: The department oversees the state's equal opportunity program and provides technical assistance, tools, training, and resources to help agencies effectively implement the state's equal opportunity policies. The department believes this rule is important to promote consistent enforcement of these rules, minimize duplication of effort, establish appropriate levels of authority, and to promote compliance with federal and state laws and regulations. The department recognizes agency managers are essential to effective implementation of these rules because they may have contact with applicants, employees, or customers who may request reasonable accommodations, modifications to policies or procedures, or request alternatives to accessing a program, service, or activity. Agency managers must know their roles and responsibilities in responding to these requests to ensure fair and consistent practices. Failure to appropriately handle these requests could result in liability for the state.

4. Concerned persons may submit their data, views, or arguments, including comments on the proposed form in Rule XVI, either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to John Pavao, Department of Administration, P.O. Box 200127, 125 N. Roberts Street, Helena, MT 59620-0127; telephone (406) 444-3984; fax (406) 444-0703; Montana Relay Service 711; FAX (406) 444-0703; or e‑mail [email protected], and must be received no later than 5:00 p.m., July 8, 2011.

5. John Pavao, Department of Administration, has been designated to preside over and conduct this hearing.

6. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this department. Persons who wish to have their name added to the mailing list shall make a written request which includes the name and mailing address or e-mail address of the person to receive notices and specifies that the person wishes to receive notices regarding State Human Resources Division rulemaking actions. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in 4 above or may be made by completing a request form at any rules hearing held by the department.

7. An electronic copy of this proposal notice is available through the department's web site at http://doa.mt.gov/administrativerules.mcpx. The department strives to make the electronic copy of the notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that if a discrepancy exists between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered. In addition, although the department works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.

8. The bill sponsor contact requirements of 2‑4‑302, MCA, do not apply.

By: /s/ Janet R. Kelly By: /s/ Michael P. Manion

Janet R. Kelly, Director Mike Manion, Rule Reviewer

Department of Administration Department of Administration

Certified to the Secretary of State May 31, 2011.