Current through Register Vol. 50, No. 9, September 20, 2024
A. Purpose-to
establish the secretary's commitment to equal employment opportunities and to
establish formal procedures regarding reasonable accommodation for all
employees, applicants, candidates for employment (including qualified
ex-offenders) and visitors.
B.
Applicability-deputy secretary, undersecretary, chief of operations, assistant
secretary, regional wardens, wardens, director of Probation and Parole,
director of Prison Enterprises, employees, applicants, candidates for
employment (including ex-offenders) and visitors. Each unit head is responsible
for ensuring that appropriate unit written policy and procedures are in place
to comply with the provisions of this regulation.
C. Policy. It is the secretary's policy to
assure equal opportunities to all employees, applicants, candidates for
employment (including ex-offenders) and visitors without regard to race, color,
religion, sex, sexual orientation, gender identity, national origin, political
affiliation, disability or age and ensure compliance with the requirements of
the Americans with Disabilities Act as amended.
1. Exceptions:
a. where age, sex or physical requirements
constitute a bona fide occupational qualification necessary for proper and
efficient operations;
b. where the
implications of nepotism restrict such employment or employment opportunity;
and
c. preferential hiring will be
given to veterans in accordance with Chapter 22 of the Civil Service
rules.
2. Equal
opportunities will be provided for employees in areas of compensation,
benefits, promotion, recruitment, training and all other conditions of
employment. Notices of equal employment opportunities will be posted in
prominent accessible places at each employment location.
3. Equal access to programs, services and
activities will be provided to all visitors. Advance notice of a requested
accommodation shall be made during normal business hours to ensure availability
at the time of the visit.
4. If any
employee is made aware of or has reason to believe that a visitor to the unit
is deaf or hard of hearing, the employee is required to advise the person that
appropriate auxiliary aids and services will be provided. The employee should
then direct the visitor to the unit ADA coordinator or designee. Likewise, such
information must be forthcoming in response to any request for auxiliary aid or
services.
5. Harassment,
discrimination, or retaliating against an individual related to exercising or
aiding in the exercise of ADA rights or for having a relationship or
association with another individual with a known disability is
prohibited.
D.
Definitions
Age Discrimination in Employment Act
(ADEA)-a federal law to protect individuals 40 years of age
and over from arbitrary discrimination in employment practices, unless age is a
bona fide occupational qualification. The state of Louisiana has passed similar
legislation and the term ADEA will refer to both federal and
state prohibitions against age discrimination in this regulation.
Americans with Disabilities Act
(ADA)-a comprehensive federal law which requires the state to
provide equal access for people with disabilities to programs, services and
activities of the department, as well as to employment opportunities.
Applicant- a person who has applied for a
job and whose qualification for such is unknown.
Auxiliary Aids and Services (AAS)-external
aids used to assist people who are hearing-impaired and may include qualified
sign language or oral interpreters, written materials, telephone handset
amplifiers, assistive listening devices, telephones compatible with hearing
aids, closed caption decoders, open and closed captioning, telecommunication
devices for deaf persons (TDD/TTY), videotext displays or other effective
methods of making aurally delivered materials available to individuals with
hearing impairments.
Candidate- a person who has successfully
passed the required test and/or meets the Civil Service minimum qualifications
for the job sought.
Disability- a physical or mental impairment
that substantially limits one or more of the major life activities of an
individual, a record of such impairment, or being regarded as having such
impairment.
a.
Impairment- any physiological, mental or psychological
disorder or condition, including those that are episodic or in remission, that
substantially limits one or more major life activities when active.
b. Major Life Activities:
i. generally, caring 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;
and
ii. the operation of a major
bodily function, including functions of the immune system, special sense organs
and skin; normal cell growth; and digestive, genitourinary, bowel, bladder,
neurological, brain, respiratory, circulatory, cardiovascular, endocrine,
hemic, lymphatic, musculoskeletal and reproductive functions. The operation of
a major bodily function includes the operation of an individual organ within a
body system.
Effective Communication- communication with
persons with disabilities that is as effective as communication with others.
Effective communication is achieved by furnishing appropriate auxiliary aids
and services where necessary to afford qualified individuals with disabilities
an equal opportunity to participate in or benefit from the services, programs
or activities of the department.
Equal Employment Opportunity
(EEO)-the operation of a system of human resources
administration which ensures an environment that will provide an equal
opportunity for public employment to all segments of society based on
individual merit and fitness of applicants without regard to race, color,
religion, sex, sexual orientation, gender identity, national origin, political
affiliation, disability or age (except where sex, age or physical requirements
constitute a bona fide occupational qualification necessary to the proper and
efficient operation of the department).
a. The Equal Employment Opportunity
Commission (EEOC) is the federal regulatory body for EEO related complaints and
charges.
Essential Functions- the fundamental and
primary job duties of a position. Considerations in determining whether a
function is essential includes such factors as the written job description;
whether the reason the position exists is to perform that function; the limited
number of employees available to perform that function; and the degree of
expertise required to perform the function.
Ex-Offender- those offenders who are no
longer in the physical custody of the DPS and C or no longer under the
supervision of the Division of Probation and Parole.
Family and Medical Leave- leave for which an
employee may be eligible under the provisions of the Family and Medical Leave
Act of 1993.
HDQ ADA Director- the department
representative responsible for facilitating the appeals process relative to any
grievances filed regarding a request for accommodation.
Qualified Individual-
a. Under Title I of the ADA, an individual
with a disability who meets the requisite skill, experience, and education
requirements for the position and who can perform the essential functions of
the position held or applied for, with or without reasonable
accommodation(s).
b. Under Title II
of the ADA, an individual with a disability who meets the essential eligibility
requirements for the receipt of services or the participation in programs or
activities provided by the department, with or without reasonable
accommodation(s).
Reasonable Accommodation-
a. Under Title I, a modification or
adjustment to the work environment that will enable a qualified individual with
a disability to:
i. participate in the
testing, application and/or interview process;
ii. perform the essential functions of the
job; or
iii. provide equal
opportunity to the benefits and privileges of employment.
b. Under Title II, a modification that
permits an individual with a disability to effectively communicate with the
department and/or ensure equal opportunity relative to department's programs,
services, activities and facilities.
Requestor- a person who requests an
accommodation for a disability.
Seniority- a calculation of the number of
years of service to the department and used in comparison to another employee's
or applicant's number of years of service to the department. Seniority may be
used as a factor in employment decisions but may never be used as a substitute
for age discrimination.
Substantially Limits- an impairment that
prevents the ability of an individual to perform one or more major life
activities as compared to most people in the general population when taking
into consideration factors such as the nature, severity, duration and long-term
impact of the condition. Such consideration must be regardless of any
mitigating measures such as modifications, auxiliary aids or medications used
to lessen the effects of the condition (except for use of ordinary eyeglasses
or contact lenses).
Undue Hardship- an accommodation that would
be unduly costly, extensive, substantial or disruptive, in light of factors
such as the size of the agency, the resources available and the nature of the
agency's business operations.
Unit ADA Coordinator- the department
representative responsible for facilitating the interactive evaluation process
relative to any request for accommodation.
Visitor- for the purpose of this regulation,
includes any non-departmental employee who is authorized to be on institutional
grounds (i.e., volunteers, contractors, official guests, etc.).
E. Procedures
1. Coordination of ADA Matters
a. The secretary will establish and designate
a headquarters ADA director. This employee is charged with reviewing, recording
and monitoring ADA matters for the department and will also advise and make
recommendations to the secretary or designee regarding such matters as
appropriate.
b. Each unit head will
designate a primary unit ADA coordinator to coordinate unit ADA matters. All
units will prominently post the name and telephone number of the unit ADA
coordinator.
2.
Initiation of Requests for Accommodation
a. A
qualified requestor with a known disability of a long term nature should be
accommodated where reasonably possible, providing the accommodation does not
constitute a danger to the requestor or others and does not create undue
hardship on the department or its employees.
NOTE: If a requestor is an employee, applicant or a candidate
for employment, the requestor must be able to perform the essential functions
of the job with the accommodation.
b. The ADA does not require that a request
for accommodation be provided in any particular manner; therefore, regardless
of the form of the request, the department is deemed to have knowledge of the
request.
c. If an employee,
applicant or candidate for employment informs anyone in his chain of command,
human resources personnel, or the unit ADA coordinator that he has difficulty
performing his job duties or participating in a program or service due to a
medical condition, the employee, applicant or candidate for employment is
deemed to have made a request for accommodation.
d. If a visitor informs an employee that he
cannot participate in the visiting process or any other program or service that
the visitor is entitled to participate in, the visitor is deemed to have made a
request for accommodation.
e. Once
any request for accommodation has been received, either verbally or in writing,
the person receiving the request should immediately relay the request to the
unit ADA coordinator or designee.
f. An employee, applicant, candidate for
employment (including ex-offenders) or visitor may complete a request for
accommodation form. The requestor completing the form must forward it to the
unit ADA coordinator for processing.
3. Accommodation Review Process
a. Upon receipt of the completed request for
accommodation the unit ADA coordinator shall seek to determine the following:
i. if the medical condition is of a temporary
or long-term nature;
ii. if
additional medical information is needed from the requestor's physician or
through a second opinion. At this point of the process, the unit ADA
coordinator may inform the requestor that his doctor must complete an essential
function form to determine the following:
NOTE: The Index of Essential Job Functions contains the
Essential Functions Form for each job category used by the department. The
index is maintained in each unit Human Resources Office.
(a). what specific symptoms and functional
limitations are creating barriers;
(b). if the limitations are predictable,
subject to change, stable or progressive;
(c). how the limitations impact the
requestor's ability to perform the job, and for visitors, how the limitations
impact the requestor's ability to fully participate in the activities and
services to which the requestor is entitled;
iii. if the condition impairs a major life
activity.
b. If questions
remain, staff may contact the requestor's treating physician
directly.
c. The unit ADA
coordinator shall ensure that a formal request is submitted on a request for
accommodation form and provide assistance as needed.
d. Once the initial information is gathered,
a dialogue between the requestor and unit ADA coordinator regarding resolution
of the problem shall begin.
e. The
discussion may include the following matters.
i. If the problem is of a temporary nature,
use of FMLA or sick leave, Workman's Compensation or a temporary halt of some
job duties may resolve the problem.
ii. If a second medical opinion is needed,
this is to be performed at the department's cost with a physician of the
department's choosing.
iii. If the
medical condition is deemed to be a qualified disability, this decision shall
be documented.
NOTE: Due to the nature of a disability, the disability may
progress and require additional modifications at a later date.
iv. The goal is to reach a
mutually acceptable accommodation, if possible. The secretary or designee shall
make the final decision on what the actual accommodation will be.
f. An exception to the need to
make an accommodation includes, but is not limited to the following:
i. not a qualified disability;
ii. threat to one's self or others.
Considerations are as follows:
(a). duration
of the risk involved;
(b). nature
and severity of the potential harm;
(c). likelihood that potential harm will
occur;
(d). imminence of the
potential harm;
(e). availability
of any reasonable accommodation that might reduce or eliminate the
risk;
iii. undue
hardship. The decision to use this exception may be made by the headquarters
ADA director only after consultation with the undersecretary. A written
description of the problem with the requested accommodation and the difficulty
anticipated by the unit should be sent to the headquarters ADA director.
Considerations are as follows:
(a). scope of
the accommodation;
(b). cost of the
accommodation;
(c). budget of the
department;
(d). longevity of the
accommodation;
iv.
alteration would fundamentally change the nature of the program, service or
activity.
4.
Decision
a. Consideration should be given on a
case-by-case basis.
b. The granting
of leave can be an accommodation.
c. Once the decision to accommodate or not is
made, the requestor shall be informed in writing of the decision of whether or
not an accommodation will be made, the reason for the decision and the
accommodation to be made, if applicable, including any specific details
concerning the accommodation. The requestor must also be informed of the right
to appeal the decision to the headquarters ADA director.
i. For each decision, a copy of the packet of
information containing the decision, all information used to reach the decision
and all attempts to resolve the request shall be forwarded to the headquarters
ADA director. The unit ADA coordinator shall ensure that all requests for
accommodation are properly and timely entered into the department's ADA
database within five days of receiving the request.
d. The original of the packet of information
concerning the request with the decision shall be maintained in a confidential
file for three years after the requestor has left the department's employ or
notification has been received that a requestor no longer wishes to be afforded
visitor status.
5. Appeal
a. The requestor has the right to appeal the
unit's decision for the following reasons only:
i. the finding that the medical condition is
not a qualifying disability;
ii.
the denial of an accommodation; or
iii. the nature of the
accommodation.
b. The
requestor shall forward the appeal of the unit's decision to the headquarters
ADA director.
c. At the discretion
of the headquarters ADA director, additional information or medical
documentation may be requested.
d.
After consultation with the undersecretary, the headquarters ADA director shall
issue a written appeal decision to the requestor, a copy of which shall also be
sent to the appropriate unit head and unit ADA coordinator.
e. No additional appeal will be accepted as
the headquarters ADA director's decision shall be final.
6. Recordkeeping
a. The headquarters ADA director shall
maintain records of all requests for accommodation made throughout the
department.
b. To ensure uniform
and consistent compliance with the provisions of this regulation, the
headquarters ADA director shall maintain and track statistics concerning all
requests for accommodation from employees, applicants, candidates for
employment and visitors and the nature and outcome of the accommodations
requested.
c. If a pattern becomes
apparent following review of the statistics, the headquarters ADA director will
seek to remedy and/or correct any problems noted and report same to the
secretary.
7. Essential
Job Functions
a. General Requirements
i. Employment candidates must complete an
essential job functions statement at the time of interview for employment
and/or return to employment. Employees may be required to complete an
up-to-date essential functions form as appropriate and when deemed necessary by
the unit head in order to ensure that the fundamental mission of the department
is sustained.
ii. The index of
essential job functions contains the essential functions form for each job
category used by the department. The index is maintained in each unit human
resources office.
b.
Employee and Unit Specific Requirements. Employees may be required to complete
an up-to-date essential job functions statement and medical inquiry form in the
following or similar circumstances:
i.
exhaustion of sick leave and if applicable, exhaustion of FMLA
entitlement;
ii. expressed
inability to participate in a mandatory work-related activity (i.e., training)
and/or to perform essential job functions; and/or
iii. appearance of the inability to perform
essential job functions.
iv. The
medical inquiry form must include a prognosis, whether the condition is
temporary or permanent, when the condition began, the expected date of return
to duty, whether the employee is able to perform the essential functions of the
job with or without accommodation and a description of the accommodation
needed.
NOTE: In certain situations, a second opinion by an
independent third party may be appropriate. This opinion will be at the unit's
expense.
8. Conciliation Options for EEO and ADA
Concerns
a. Should a requestor feel that he
has experienced discrimination in any manner or not be satisfied with the
results of the request for accommodation, he may seek conciliation through
Corrections Services' grievance process, through the EEOC for employment
related complaints and/or the U.S. Department of Justice (USDOJ) for issues not
related to employment.
b.
Requestors are encouraged to use the internal procedures to address and resolve
complaints to the extent possible. Use of these internal procedures does not
restrict a requestor from filing with the appropriate federal agency prior to
exhaustion of the department's internal process(es).
9. Departmental Conciliation of EEO and ADA
Matters
a. The headquarters Human Resources
Section shall coordinate the department's response(s) to complaints and charges
of discrimination regarding equal employment opportunity matters.
Complaints/charges may be addressed through the internal grievance procedure
when such a grievance has been filed and heard at the appropriate unit
levels.
b. For formal charges
generated by the EEOC or the USDOJ, the unit head and the applicable unit's
attorney will develop the department's response and conciliation opinion (if
applicable.) Any unit receiving a "notice of charge of discrimination" document
from the EEOC or similar notice from the USDOJ shall forward the notice to the
headquarters legal services upon receipt.
10. Employment Applications of Ex-Offenders
a. All applications for employment received
from persons who are ex-offenders will be reviewed by a committee appointed by
the secretary. The committee shall be composed of the chief of operations or
designee, assistant secretary or designee and the headquarters human resources
director or designee. Consideration will be given to the unit head's
recommendation, the ex-offender's crime, sentence, institutional record and
length of time free from other convictions. The committee's recommendations
will then be submitted to the secretary or designee for review with the unit
head.
b. Ex-offenders will not be
eligible for employment in positions which require an employee to carry a
firearm in the performance of duty. This restriction is based on applicable
Civil Service job qualifications and state and federal law.
11. Employee Voluntary
Self-Identification
a. All employees, at the
time of employment and every five years thereafter, shall complete a voluntary
self-identification of disability form for effective data collection and
analysis of the percentage of individuals with disabilities employed by the
department. This form only requests disclosure regarding whether an employee
has a disability without reference to, or identification of, the actual
impairment, disability, or medical condition.
12. Training
a. The department shall provide comprehensive
annual training for all departmental personnel regarding this
regulation.
b. All supervisor shall
receive a minimum of one hour of education and training on the ADA within 90
days of hire or appointment to a supervisory position, and every three years
thereafter.
c. ADA coordinators
shall receive a minimum of one hour of education and training on the ADA within
90 days of hire or appointment to the role of ADA agency coordinator and every
three years thereafter.
13. Additional information pertaining to EEO,
ADA and ADEA is available in any human resources office.
AUTHORITY NOTE:
Promulgated in accordance with
R.S.
49:950.
