Module 3: Reasonable Accommodation

Reasonable accommodation is a key nondiscrimination requirement of the ADA. Of course many people with disabilities can perform jobs without accommodations. But others are excluded from jobs that they are qualified to perform because of unnecessary barriers. Some face physical barriers that make it difficult to get into and around a work site. Some are excluded or limited by the way people communicate with each other. For example: A person who is deaf can’t rely on oral communication. Other people are excluded because of rigid work schedules that allow no flexibility for people with needs caused by disability. Reasonable accommodation addresses these and more situations.

Definition of reasonable accommodation: Any change in the work environment or in the way things are customarily done that enables a person with a disability to enjoy equal employment opportunities.

Pre-employment

Employers must provide an accommodation, if needed, to enable an applicant with a disability to have equal opportunity in the application and interview process.

Here are some examples:

• Holding an interview in an accessible location for someone who uses a wheelchair
• Providing a sign interpreter for a person who is deaf
• Providing a reader for a person who is blind

Employers may find it helpful to state in a job notice how applicants with disabilities can request accommodations for the application and interview process.

Reasonable Accommodation to Do the Job

Most requests for accommodations occur – on the job.

The definition is broad and it’s deep. A reasonable accommodation is any modification or adjustment to:

• the work environment,
• the manner or
• the circumstances

that enables a qualified employee with a disability to perform the essential job functions.

Reasonable Accommodation for Benefits and Privileges

Reasonable accommodation also applies to benefits and privileges of employment - modifications or adjustments that enable an employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by employees without disabilities.

One of the first calls New England ADA Center received was from a state agency that was holding a retirement party. One of their employees was deaf and had requested a sign language interpreter so she could communicate with her colleagues at the party. The state agency wanted to know if the ADA reasonable accommodation requirement extended to non job activities. And the answer is yes. That employer-sponsored party was a benefit of employment and the employee who is deaf had a right to enjoy it.

Examples of Reasonable Accommodation

Here are examples of reasonable accommodations:

• A reader for someone who is blind or has a significant learning disability.
  
  
• A qualified interpreter and we’re not talking about interpreters for someone who speaks Spanish or French, we’re talking about interpreters for people who are deaf.
  
  
• Modifying training material, such as producing material in Braille for someone who is blind.
  
  
• Making facilities accessible – the work area, the toilet room, the parking lot.
  
  
• Sometimes equipment needs to be acquired or modified, for example an employee with limited manual dexterity who has difficulty picking up a telephone receiver may need a headset.
  
  
• An employer may need to be flexible concerning a work schedule. An employee with kidney disease who is receives dialysis three times a week might need his work schedule modified so he can attend the dialysis appointments.
  
  
• An employee may need to work part time instead of full time because of a disability; perhaps someone with multiple sclerosis who no longer has the energy for full time work due to the MS.
  
  
• An employer may need to modify a policy - many employers have policies prohibiting employees from eating or drinking at their workstations. An employee with insulin-dependent diabetes might need to immediately eat a candy bar or drink fruit juice as her insulin level necessitates. The employer must modify its policy, absent undue hardship – which we’ll discuss soon.
  
  
• Sometimes an employee with a disability needs to take leave – to get medical treatment, to get fitted for a new wheelchair, to train with a new service animal -which can take two to three weeks. These are just some examples. An employer is not required by the ADA to provide paid leave, just unpaid leave.
  
  
• Job restructuring is another frequent accommodation and that necessitates understanding which functions are essential and which are marginal. An employer never has to reallocate essential functions as a reasonable accommodation, but can do so if it wishes.

To review how to determine whether a job function is essential or marginal see Module 2: Who Has Rights Under Title I of the ADA..

And finally if there is no accommodation that will allow an employee with a disability to stay in his or her job an employer must reassign the employee if there is a vacant position that the employee is qualified to do.  First the employer looks to see if there’s a vacant lateral position with the same salary and benefits. If there’s no lateral position the employer must see if there’s a vacant lower position that the employee is qualified to do.

Undue Hardship for an Employer

An employer does not have to provide a reasonable accommodation that would cause an "undue hardship" to the employer. In general undue hardship means “significant difficulty or expense.” Undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense. An employer may not claim undue hardship because the cost of an accommodation is high in relation to an employee's wage or salary.

A determination of undue hardship should be based on several factors, including:

• the nature and cost of the accommodation needed;
  
  
• the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility;
  
  
• the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity);
  
  
• the type of operation of the employer, including the structure and functions of the workforce;
  
  
• the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer;
  
  
• the impact of the accommodation on the operation of the facility.

The ADA's legislative history indicates that Congress wanted employers to consider all possible sources of outside funding when assessing whether a particular accommodation would be too costly. Undue hardship is determined based on the net cost to the employer. Thus, an employer should determine whether funding is available from an outside source, such as a state rehabilitation agency, to pay for all or part of the accommodation. In addition, the employer should determine whether it is eligible for certain tax credits or deductions to offset the cost of the accommodation (see Resource section). Also, to the extent that a portion of the cost of an accommodation causes undue hardship, the employer should ask the individual with a disability if he or she will pay the difference.

For information on federal tax credits and deductions see the Resources section of this web course.

Undue hardship refers not only to financial difficulty but to something that is unduly extensive, substantial, or disruptive, or that would fundamentally alter the nature or operation of the business.

Sometimes providing a particular accommodation would be unduly disruptive to other employees or to an employer’s ability to conduct business.

For example: If an employee with a disability requested that the thermostat in the workplace be raised to a certain level to accommodate her disability, and this level would make it uncomfortably hot for other employees or customers, the employer would not have to provide this accommodation. However, if there was an alternative accommodation that would not be an undue hardship, such as providing a space heater or placing the employee in a room with a separate thermostat, the employer would have to provide that accommodation.

An employer cannot claim undue hardship based on employees' (or customers') fears or prejudices toward the individual's disability. Nor can undue hardship be based on the fact that provision of a reasonable accommodation might have a negative impact on the morale of other employees.

Process for identifying a reasonable accommodation

Usually the person with the disability makes the request. When an employee requests accommodation, she must let the employer know that she needs an adjustment or change at work for a reason related to a medical condition. The employee may use "plain English" and need not mention the ADA, disability or use the phrase "reasonable accommodation."

For example: An employee tells her supervisor, "I'm having trouble getting to work at my scheduled starting time because of medical treatments I'm undergoing." This is a request for a reasonable accommodation. Or an employee tells his supervisor, "I need six weeks off to get treatment for a back problem." This is a request for a reasonable accommodation.

Often, both the disability and the type of accommodation required will be obvious, and there may be little or no discussion. In other situations, the employer may need to ask questions concerning the nature of the disability and the person’s functional limitations in order to identify an effective accommodation. The employer and the person with a disability should engage in an informal process to clarify what the person needs and identify the appropriate reasonable accommodation. The employer may choose among reasonable accommodations as long as the chosen accommodation is effective. Ultimately it is the employer's decision.

Sometimes an outside organization can help determine what would be an effective accommodation. The Job Accommodation Network (called JAN) is an organization that provides toll-free, individual worksite accommodation consultation with employers, employees, people with disabilities, rehabilitation counselors and others. They have 300 disability specific accommodation publications, from A-Z or at least from Addison’s Disease to wheelchair use. Check the Resources section of this web course for JAN’s website and phone number.

If an employee doesn’t raise the issue of reasonable accommodation, the employer may do so. For example: An employer could ask an employee who is deaf and is being sent on a business trip if she needs reasonable accommodation.

An employer cannot require a person with a disability to accept an accommodation. Sometimes employers assume employees with disabilities need accommodations when they don’t. For example: An employer insists that an employee who is blind be accompanied by another employee to meetings outside the office. In fact the employee who is blind is capable of traveling alone to meetings outside the office.

However, if an employee needs a reasonable accommodation to perform an essential function and refuses, she or he may no longer be “qualified” to remain in the job.

For example: A man whose job is data entry develops a disease that causes his muscles to stiffen. After a year his data entry speed has dropped by 80%. His employer discusses with him using voice-activated software. The employee refuses. He is not interested in discussing any accommodations. He may no longer be qualified to remain in his job.

Documentation

Frequently Asked Questions

1. Do requests for reasonable accommodation need to be in writing?

No. Requests for reasonable accommodation do not need to be in writing. Individuals may request accommodations in conversation or may use any other mode of communication. An employer may choose to write a memorandum or letter confirming the individual's request. Alternatively, an employer may ask the individual to fill out a form or submit the request in written form, but the employer cannot ignore the initial request.

Reference: E E O C Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act

2. May an employer require an individual to go to a health care professional of the employer's (rather than the employee's) choice for purposes of documenting need for accommodation and disability?

The ADA does not prevent an employer from requiring an individual to go to an appropriate health professional of the employer's choice IF the individual provides insufficient information from his/her treating physician (or other health care professional) to substantiate that s/he has an ADA disability and needs a reasonable accommodation. However, if an individual provides insufficient documentation in response to the employer's initial request, the employer should explain why the documentation is insufficient and allow the individual an opportunity to provide the missing information in a timely manner.

Reference: E E O C Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act

3. Is an employer required to provide the reasonable accommodation that the individual wants?

The employer may choose among reasonable accommodations as long as the chosen accommodation is effective. Thus, as part of the interactive process, the employer may offer alternative suggestions for reasonable accommodations and discuss their effectiveness in removing the workplace barrier that is impeding the individual with a disability.

Reference: E E O C Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act

4. Does an employer have to allow an employee with a disability to work at home as a reasonable accommodation?

An employer must modify its policy concerning where work is performed if such a change is needed as a reasonable accommodation, but only if this accommodation would be effective and would not cause an undue hardship. Whether this accommodation is effective will depend on whether the essential functions of the position can be performed at home. There are certain jobs in which the essential functions can only be performed at the work site -- e.g., food server, cashier in a store. For such jobs, allowing an employee to work at home is not effective because it does not enable an employee to perform his/her essential functions. Certain considerations may be critical in determining whether a job can be effectively performed at home, including (but not limited to) the employer's ability to adequately supervise the employee and the employee's need to work with certain equipment or tools that cannot be replicated at home. In contrast, employees may be able to perform the essential functions of certain types of jobs at home (e.g., telemarketer, proofreader). For these types of jobs, an employer may deny a request to work at home if it can show that another accommodation would be effective or if working at home will cause undue hardship.

Reference: E E O C Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act

5. How should an employer handle leave for an employee covered by both the ADA and the Family and Medical Leave Act (FMLA)?

An employer should determine an employee's rights under each statute separately, and then consider whether the two statutes overlap regarding the appropriate actions to take. Under the ADA, an employee who needs leave related to his/her disability is entitled to such leave if there is no other effective accommodation and the leave will not cause undue hardship. When the employee is ready to return to work, the employer must allow the individual to return to the same position (assuming that there was no undue hardship in holding it open) if the employee is still qualified (i.e., the employee can perform the essential functions of the position with or without reasonable accommodation). Under the FMLA, an eligible employee is entitled to a maximum of 12 weeks of leave per 12 month period. The FMLA guarantees the right of the employee to return to the same position or to an equivalent one.

6. Do employers have to grant indefinite leave as a reasonable accommodation to employees with disabilities?

No. Although employers may have to grant extended medical leave as a reasonable accommodation, they have no obligation to provide leave of indefinite duration. Granting indefinite leave, like frequent and unpredictable requests for leave, can impose an undue hardship on an employer’s operations.

Reference: E E O C Applying Performance And Conduct Standards To Employees With Disabilities

7. Must an employer allow an employee with a disability to work a modified or part-time schedule as a reasonable accommodation?

Yes. A modified schedule may involve adjusting arrival or departure times, providing periodic breaks, altering when certain functions are performed, allowing an employee to use accrued paid leave, or providing additional unpaid leave. An employer must provide a modified or part-time schedule when required as a reasonable accommodation, absent undue hardship, even if it does not provide such schedules for other employees.

Reference: E E O C Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act

8. Is an employer's obligation to offer reassignment to a vacant position limited to those vacancies within an employee's office, branch, agency, department, facility, personnel system (if the employer has more than a single personnel system), or geographical area?

No. This is true even if the employer has a policy prohibiting transfers from one office, branch, agency, department, facility, personnel system, or geographical area to another. The ADA contains no language limiting the obligation to reassign only to positions within an office, branch, agency, etc. Rather, the extent to which an employer must search for a vacant position will be an issue of undue hardship. If an employee is being reassigned to a different geographical area, the employee must pay for any relocation expenses unless the employer routinely pays such expenses when granting voluntary transfers to other employees.

Reference: E E O C Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act.

9. If an employee is reassigned to a lower level position, must an employer maintain his/her salary from the higher level position?

No, unless the employer transfers employees without disabilities to lower level positions and maintains their original salaries.

Reference: E E O C Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act.

Check Your Learning

Answer a series of questions associated with a workplace scenario.

Course Contents

• Course Introduction
• Module 1: Who has obligations
• Module 2: Who has rights
• Module 3: Reasonable Accommodation
• Module 4: Performance & Safety
• Module 5: Pre-Employment
• Module 6: Medical Information & Confidentiality
• Module 7: Complaints
• Resources