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The
Duty to Accommodate
The Undue Hardship Defense
Initiating the Accommodation Process
Responding to Accommodation Requests
Accommodating Applicants and Employees
Do
It, But Don’t Tell
Making Your Life Easier, Sort Of
The
EEOC has issued guidelines
addressing the ADA reasonable accommodation process. While the
guidelines shed light on many issues, they also leave some
unanswered questions. Our Editors analyzed the 70-page guidance and
summarized the highlights below.
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Employers have been complying with
the Americans with Disabilities Act (ADA) for several years,
yet most are still confused by its complex requirements and
distinctive vocabulary. In particular, one of the centerpieces of
the law, the duty of reasonable accommodation, requires employers to
engage in a complicated interactive process to determine how to
remove workplace barriers that prevent a disabled person from
applying for or performing a job. To explain this duty, the Equal
Employment Opportunity Commission (EEOC) has issued its
Enforcement Guidance on Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act (Guidance). The Guidance,
provided to EEOC examiners who investigate claims under the ADA,
answers some employer questions but also raises a few more.
To help you understand the 70-page
Guidance, the Editors are dedicating this article to its analysis. The EEOC also issued a condensed version of
the Guidance for smaller organizations, Small Employers and
Reasonable Accommodation.
The Duty to Accommodate
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Under the ADA, employers with
15 or more employees must provide "reasonable accommodation" to
qualified disabled individuals unless doing so would cause "undue
hardship." According to the Guidance, workplace barriers can prevent
otherwise qualified disabled people from applying for or performing
jobs that they could do with some accommodation. Thus, simply put, a
covered employer may have to remove these barriers. Examples of
possible accommodations include modifying the job application
process to allow a disabled individual to compete for a job and
making work facilities accessible. These and other job-performance
accommodations are discussed below.
The Guidance also makes it clear
that the employer’s duty to accommodate extends to both job
applicants and current employees who are disabled and otherwise meet
the job qualifications (meaning they have the requisite skills,
experience, and education). If an applicant or employee does not
meet the basic job qualifications, you do not have to provide an
accommodation.
The Undue Hardship Defense
An employer must provide only an accommodation that is "reasonable."
An accommodation is not reasonable if providing it would impose an
"undue hardship" on the operation of the employer’s business. "Undue
hardship" means significant difficulty or expense in making, or
resulting from, the accommodation. According to the ADA, the undue
hardship standard takes into account not only the financial
difficulty imposed on the employer but also whether the
accommodation would be unduly disruptive to its business operations
or other employees. The Guidance does not elaborate on what
financial difficulty the employer must show to meet the standard.
Instead, it simply indicates that employers should consider all
possible sources of outside funding, including any available state
or federal funding or tax credits. The Guidance even suggests that
if a portion of the accommodation cost would be an undue hardship,
the disabled employee should be asked to pay for that portion.
The Guidance recognizes that some
modifications or adjustments are not considered reasonable
accommodations. For example, an employer does not have to eliminate
an essential function of the job if the employee cannot perform the
function even with an accommodation or if the needed accommodation
creates an undue hardship. In addition, production standards do not
have to be lowered as long as they are applied uniformly. Further,
employers do not have to provide personal items a disabled employee
may need for daily living both at work and at home (such as
wheelchairs) or "personal use amenities" if they are not provided to
nondisabled employees (such as refrigerators).
Initiating the
Accommodation Process
The Guidance states that the burden is on the applicant or employee
to request an accommodation. Employers are not expected to be
clairvoyant. However, the disabled individual does not have to use
any "magic" words or mention the ADA specifically to request an
accommodation. For example, an employee can tell his supervisor he
needs six weeks of leave for treatment of a back problem, without
specifically saying he needs an accommodation under the ADA.
Nevertheless, the employee must give the employer enough information
to put the employer on notice that he needs an accommodation. For
example, if the employee only tells his supervisor that he needs a
new chair because his current chair is uncomfortable, he has not
requested an accommodation.
If an employee has not asked for an
accommodation, you do not have to inquire whether one is needed.
However, the Guidance suggests that you should broach the subject
with an employee who is having difficulty performing a job function
if you know the employee has a disability and you think the problem
is related to the disability.
The Guidance also emphasizes that
accommodation requests do not have to be in writing. The employer
may ask the disabled individual to submit a request in writing but
may not ignore any verbal requests.
Responding to
Accommodation Requests
Once an employee or applicant has requested an accommodation, the
Guidance indicates that you should determine the following: (1)
whether the accommodation is needed; (2) if needed, whether it would
be effective; and (3) if effective, whether providing it would
create an undue hardship. To this end, the Guidance suggests that
you engage in an informal, interactive process to determine what the
individual’s needs are and to identify appropriate accommodations.
Since you only have to accommodate disabled individuals, the first
step should be to determine whether the person actually has a
disability protected under the ADA.
If the disability or need for
accommodation is not apparent, the Guidance explains that the ADA
allows employers to ask questions concerning the nature of the
disability and the person’s limitations. In addition, you may
require documentation from a medical professional regarding the
existence of the disability and the need for accommodation, but the
documentation request must be limited to these two issues. Thus, you
cannot ask for all of the individual’s medical records or for
information on disabilities that do not need accommodation.
If the individual does not provide
the medical documentation, the employer may refuse to provide the
accommodation. Alternatively, if the individual provides
insufficient information to determine whether the person has a
disability and needs accommodation, the employer must give the
individual an opportunity to provide the missing information. The
employer’s ability to require documentation is limited, however. You
can’t ask for documentation if (1) both the disability and need for
accommodation are obvious; or (2) the individual has already
provided sufficient information to show that he has a disability and
needs accommodation.
Accommodating
Applicants and Employees
For disabled applicants, the duty to accommodate includes removing
barriers in the application process and allowing the individuals to
compete for jobs. For example, an employer may need to modify its
application forms, testing procedures, and facilities to allow
disabled applicants to participate in the process. Thus, you may ask
applicants if they need an accommodation for the application
process. However, you generally may not ask an applicant if he needs
an accommodation to perform the job. An exception to this rule is
that you may ask about the type of accommodation needed if the
applicant has an obvious disability or reveals the existence of a
disability, or you reasonably believe the applicant will need an
accommodation to perform specific job functions.
For disabled employees,
accommodations must be made not only to allow them to perform the
essential functions of the job but also to allow them to enjoy all
"benefits and privileges of employment." These benefits and
privileges include any employer-sponsored social events, training
programs, communications, lounges, transportation, and other
services.
The Guidance also includes an
extensive discussion of the different types of possible
accommodations related to job performance and focuses on job
restructuring, leaves of absence, modified and part-time schedules,
modified workplace policies, and reassignment. Each of these topics
is discussed briefly, below.
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Job restructuring.
Employers may be required to reallocate or redistribute marginal
job functions to other employees if an employee is unable to
perform them because of a disability.
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Leaves of absence. A
leave may be necessary so an employee can seek treatment of a
disability, recuperate from a disability-related illness, receive
training on an assistive device or with a service animal, or avoid
temporary adverse work conditions that could aggravate a
disability (such as a radical change in office temperature).
Employers are not required to provide paid leave as an
accommodation but must allow the use of accrued paid leave or
unpaid leave. The Guidance also discusses briefly the interaction
of the ADA and the Family and Medical Leave Act but does not
provide new insight into this subject.
The Guidance also muddies the issue
of indefinite leaves and the ADA. It states that giving a leave to
an employee who cannot provide a fixed date of return is a form of
reasonable accommodation, unless the employer can show that the
leave would create an undue hardship because it cannot plan for the
employee’s return or permanently fill the position. Several courts,
however, including the Fourth and Seventh Circuit Courts of Appeals,
previously determined that providing a leave of indefinite duration
is not a reasonable accommodation. Thus, employers faced with
requests for indefinite leaves should weigh their options with legal
counsel.
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Modified and part-time
schedules. Employers may have to adjust arrival or departure
times, provide periodic breaks, change when certain functions are
performed, or allow part-time work. However, if the modification
would significantly disrupt the employer’s operations or affect
the ability of other employees to perform their jobs, it would be
considered an undue hardship.
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Modified workplace policies.
An employer may have to change a workplace policy to accommodate
an employee’s disability-related limitation. For example, the
employer may have to grant more unpaid leave than usually allowed
to an employee who needs chemotherapy or allow a diabetic employee
to eat at his desk even though policy prohibits eating at
workstations. However, these modifications do not have to be
extended to any nondisabled employee.
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Reassignment. The
Guidance emphasizes that reassignment is the "accommodation of
last resort" and that employers should consider it only if
accommodation in the present job creates an undue hard- ship or
would not be possible. In addition, the disabled employee must be
qualified (i.e., have the requisite skills, knowledge, and
experience) for the new job, although the employer may have to
provide additional accommodation so he can perform it.
The Guidance states that
reassignment should be to a position that is equivalent in pay,
status, and benefits. However, if no equivalent position is
available, you can reassign the employee to a vacant, lower-level
position and pay the employee at that job’s normal rate. You do not
have to promote the employee to a vacant position, although you must
allow the employee to compete for promotions. In addition, you do
not have to create a new position or transfer another employee to
create a vacancy.
The Guidance also reflects the
decisions of many courts that employers must provide only an
effective accommodation, not necessarily the accommodation the
individual prefers. In fact, if more than one accommodation is
effective, the employer has the "ultimate discretion" to choose
which one to use.
Do
It, But Don’t Tell
Another confusing topic the Guidance addresses but does not clarify
is the issue of what you can tell other employees about
accommodations made. Often, an employer modifies a work rule or
policy as an accommodation and then appears to be treating the
disabled employee "better." As a result, other employees may ask
about the special treatment, especially if the disability is not
apparent. However, the ADA prohibits employers from disclosing
medical information, including the fact that an employee has a
disability that is being accommodated.
So what can you say? The Guidance
is not very helpful on this point. It suggests that an employer
respond to inquiries by "emphasizing its policy of assisting any
employee who encounters difficulties in the workplace" and by
pointing out that "many of the workplace issues encountered by
employees are personal" and that "it is the employer’s policy to
respect employee privacy." As a practical matter, this response does
not explain sufficiently the employer’s actions and may even mislead
employees into thinking that they could qualify for similar
treatment if they have any "difficulties" at work. Other HR and
legal experts suggest a better answer is to indicate that the
employer is complying with state and federal law by providing these
modifications and that they do not represent any change in the
employer’s policies.
Making Your Life Easier,
Sort Of
Although the EEOC calls the Guidance "an extremely useful tool,"
some critics charge that it does not address key issues, including
whether employers must accommodate individuals that are "regarded
as" disabled but who do not actually have a disability. Other
critics point out that it is inconsistent with court rulings
interpreting the ADA on several issues, including indefinite leaves
as accommodations. Although the Guidance is not binding on courts
that interpret the ADA, EEOC examiners investigating ADA claims will
rely on it to determine if an employer has met its accommodation
obligations. Thus, the Guidance provides insight into how the EEOC
will evaluate employers’ accommodation attempts. In addition, it
incorporates into one document, requirements from the
ADA statute
and regulations, court decisions interpreting the law, and
other EEOC guidelines addressing the ADA. While not a perfect tool,
the Guidance should help you determine what steps to take when an
employee or applicant requests an accommodation.
For more information, see EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act, EEOC Office of
Communications and Legislative Affairs, 1801 L Street, NW,
Washington, DC, 20507, 800-669-3362,
www.eeoc.gov/docs/accommodation.html.
Small Employers and Reasonable
Accommodation, EEOC (see above address and phone),
www.eeoc.gov/facts/accommodation.html.
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Personnel
Policy Service, Inc.
