La. Admin. Code tit. 22 § I-201

Current through Register Vol. 50, No. 11, November 20, 2024

Section I-201 - Equal Employment Opportunity (Includes Americans with Disabilities Act)

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.

La. Admin. Code tit. 22, § I-201

Promulgated by the Department of Public Safety and Corrections, Corrections Services, LR 26:1308 (June 2000), amended LR 35:2194 (October 2009), Amended LR 422191 (12/1/2016), Amended LR 49495 (3/1/2023).

AUTHORITY NOTE: Promulgated in accordance with R.S. 49:950.