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Four Basic Principles of Accommodation
Step One: The Request for Accommodation
Step Two: Certifying the Disability
Step Three: The Interactive Process
Step Four: Determine the Appropriate Accommodation
Step Five: Implement the Accommodation
Accommodating Can Be Painless, Good Business
Do you know what steps to take when an
employee requests an accommodation for a disability? Responding
correctly can mean the difference between defending against a
discrimination claim and creating an effective working environment.
You probably understand that you have two
major obligations under the
Americans with Disabilities Act (ADA). First, you must not discriminate against
qualified disabled individuals, and second, you must provide
reasonable accommodations so that those qualified individuals can
perform the essential functions of the job. This second duty is the
most difficult to implement because it requires you to engage in a
series of steps to determine when and what accommodations would be
appropriate. To help you comply with this duty, the Editors have
reviewed and analyzed the ADA statute, regulations, court cases, and guidances to develop a step-by-step guide for responding to
accommodation requests.
Four Basic
Principles of Accommodation
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Under the ADA, employers with 15 or more employees must accommodate
qualified individuals with disabilities to allow them to perform the
essential functions of the job, unless doing so would create an
"undue hardship." According to the
Equal Employment Opportunity
Commission's (EEOC) Technical Assistance Manual, a reasonable
accommodation is "a modification or adjustment to a job, the work
environment, or the way things usually are done that enables a
qualified individual with a disability to enjoy an equal employment
opportunity." Generally, accommodations must be provided to ensure
equal access to the application process, to allow a disabled person
to perform the essential functions of the job, and to ensure equal
benefits and privileges of employment. For example, an employer may
have to provide a reader to a blind applicant to fill out an
application form or put in a ramp to allow an employee in a
wheelchair to access the workplace.
The
EEOC, in its Technical Assistance Manual, suggests four basic
principles that employers should apply to every accommodation
decision:
1. The accommodation must be effective. In other words, it must
provide an opportunity for the disabled person to achieve the same
level of performance or enjoy equal benefits or privileges as an
average, similarly situated, nondisabled person would.
2. The accommodation does not have to be the best accommodation or
the one preferred by the disabled person.
3. The employer does not have to provide an accommodation that is
primarily for the disabled individual's personal use (such as a
wheelchair or eyeglasses).
4. The ADA sets minimum guidelines for accommodation. Employers, of
course, can do more.
Step One: The
Request for Accommodation
The accommodation process typically begins when the disabled
individual requests some change to the application process, the way
he performs the job, or to the provision of employment benefits. The
person does not have to mention the
ADA or use any "trigger" words
like "reasonable accommodation" to initiate the process. Instead, he
only has to use "plain English" and give you enough information to
alert you to the fact that he needs an adjustment or change at work
because he has a medical condition. So, for example, if an employee
tells you he needs a change in his scheduled start time because of
medical treatments, that statement is an accommodation request.
However, if the employee simply asks for a change in his start time
for "personal reasons," this request is insufficient to put you on
notice of his need for accommodation. Note also that the request
does not have to be in writing or take any particular form.
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Generally, it is the disabled individual's responsibility to alert
you to any need for an accommodation. You are not expected to be
clairvoyant and, therefore, are not required to accommodate any
disability you do not know about. However, you may initiate the
accommodation process if you have noticed a change in the ability of
a person with a known disability to perform the job. For example, if
an employee who has never been tardy begins to come into work late
and you suspect the tardiness may be related to a medical condition,
you may want to discuss this possibility with the employee and
evaluate your duty to accommodate.
Step Two:
Certifying the Disability
Since an employer only has to accommodate disabled individuals, the
next step in the accommodation process is to determine whether the
individual is disabled and to confirm the need for accommodation.
Not every medical condition is considered an ADA disability.
Therefore, according to the EEOC's recent guidance on accommodation,
you may require the individual to provide reasonable documentation
from an appropriate health care or rehabilitation professional that
certifies the disability and any functional limitations requiring
accommodation. Appropriate professionals who may provide the
documentation include doctors, psychologists, nurses, physical and
occupational therapists, speech therapists, vocational
rehabilitation specialists, and licensed mental health
professionals.
Reasonable documentation may include information that supports the
existence of the disability, its functional limitations, and the
need for an accommodation so the individual may perform the job. To
help the health professional determine if the individual is disabled
for the purposes of the ADA, you should explain the ADA's definition
of disability (i.e., a physical or mental condition that
substantially limits a major life activity) and ask the health
professional to identify specifically what the condition is, what
major life activity it affects, and how it substantially limits that
activity. In addition, you should provide a job description
specifying the person's essential job functions so the professional
can verify that an accommodation is needed.
If the disabled individual does not provide the requested medical
documentation, you may refuse to provide the accommodation. However,
if the individual provides insufficient information to determine
whether he has a disability and needs accommodation, you must give
him an opportunity to provide the missing information.
The ADA also does not allow you to require documentation that is
unrelated to the particular accommodation or disability, such as
requesting that the individual provide a complete medical history.
Further, if the individual has an obvious disability, you may not
require him to provide medical certification of his disability.
However, you may be able to request information to verify the need
for an accommodation, unless that need is also obvious. For example,
if a person in a wheelchair requests a desk the wheelchair will fit
under, you cannot ask him to document his disability or the need for
the accommodation since both are apparent.
Because of the difficulty of determining whether a particular
medical condition meets the criteria of a disability under the ADA,
some employers choose to accommodate any individual with a serious
health problem, not just those who meet the ADA definition of
disabled. The advantage to this approach is twofold. First, it may
be better employee relations to accommodate all employees with
legitimate medical problems rather than only those who are legally
disabled under the ADA. Second, any efforts at accommodation can be
used as proof of the employer's attempts to comply with the ADA if
its decisions are later challenged. This approach also has
drawbacks, however. In particular, the employer could set a
precedent that it must accommodate anyone with medical problems and
not just those who are disabled.
Step Three: The
Interactive Process - ADA
Once you have established that the person is disabled and needs an
accommodation, the EEOC encourages you to engage in a flexible,
interactive process with the disabled individual. Working with the
individual, you should attempt to identify both the precise
limitations resulting from the disability and the potential
reasonable accommodations that could overcome those limitations. To
this end, the EEOC, in its Interpretive Guidance to the ADA
regulations, recommends the following process:
1. Analyze the particular job involved and determine its purpose and
essential functions;
2. Consult with the individual to determine the precise job-related
limitations imposed by the disability and how the limitations could
be overcome with a reasonable accommodation;
3. With the individual, identify potential accommodations and assess
the effectiveness each would have in enabling the employee to
per-form the essential functions of the position; and
4. Consider the individual's preference for a particular
accommodation and select and implement the accommodation that is
most appropriate for both the individual and the employer.
In addition, in order to find possible accommodations, you may also
need to consult the individual's doctor, rehabilitation specialists,
and others with expert knowledge about dealing with the particular
disability. Reasonable accommodations may include:
-
Modifying the application
process;
-
Making existing facilities
readily accessible to and usable by employees with disabilities;
-
Job restructuring;
-
Part-time or modified work
schedules and leaves of absence;
-
Acquisition or modifications of
equipment or devices;
-
Appropriate adjustment or
modifications of examinations,
training materials, or policies;
-
Provision of qualified readers
or interpreters; and
-
Reassignment to a vacant
position.
Reassignment to a vacant position
should be considered only when an accommodation in the disabled
person's current position would pose an undue hardship.
Step
Four: Determine the Appropriate (ADA) Accommodation
In some cases, the interactive process will yield more than one
potential accommodation, so that the next step in the process is to
choose one that will allow the disabled person to perform the job.
Although the
EEOC regulations suggest that you should give
consideration to the preference of the disabled individual, you do
not have to provide the best accommodation available or the one
specifically requested by the disabled individual. You only have to
provide an effective accommodation that meets the job-related needs
of the individual. Thus, if one accommodation is less expensive or
easier to provide, it will be acceptable as long as it allows the
person to perform the job effectively.
In addition, you do not have to provide an accommodation if doing so
would create an "undue hardship." The undue hardship standard is
very tough to meet and requires employers to show that the
accommodation involves significant difficulty or expense; is unduly
extensive, substantial, or disruptive; or would fundamentally alter
the nature or operation of the business. In determining whether an
accommodation would impose an undue hardship on the employer, the
EEOC generally will consider several factors, including:
1. The nature and net cost of the accommodation needed, taking into
consideration the availability of tax credits and deductions and
outside funding;
2. The overall financial resources of the facility or facilities
involved in providing the reasonable accommodation, the number of
persons employed at the facility, and the effect on expenses and
resources;
3. The overall financial resources of the covered entity, the
overall size of the business of the covered entity with respect to
the number of its employees, and the number, type, and location of
its facilities;
4. The type of operation or operations of the covered entity
(including the composition, structure, and functions of the
workforce of the entity) and the geographic separateness and
administrative or fiscal relationship of the facility or facilities
in question to the covered entity; and
5. The impact of the accommodation upon the operation of the
facility, including the impact on the ability of other employees to
perform their duties and the impact on the facility's ability to
conduct business.
Step Five:
Implement the Accommodation
Once the accommodation has been identified, you should implement it
as soon as possible to allow the disabled individual to function
effectively in the job. Although the ADA does not specify a
particular time period for responding to accommodation requests and
providing accommodations, the EEOC has indicated that employers
should "act promptly." Any unnecessary delays could result in an ADA
violation.
When providing an accommodation, the ADA prohibits you from
disclosing to other employees any medical information, including the
fact that an employee has a disability that is being accommodated.
Thus, you cannot explain why you are making the job modifications or
treating an employee differently. However, according to the ADA
regulations, you can tell the disabled employee's supervisor about
necessary restrictions on the work or job duties and about necessary
accommodations.
Note, too, that you cannot require a disabled individual to accept
an accommodation. However, if the person cannot perform the
essential functions of the job without the accommodation, he is not
considered qualified for the position and therefore may be
terminated. If the person refuses the accommodation, document your
attempts to provide the accommodation. In fact, as a general
practice, you should document all of the steps you take to
accommodate a disabled individual.
Accommodating Can Be Painless, Good Business
The idea of accommodating a disabled individual under the
ADA can be
overwhelming. In addition to having to master a new vocabulary, you
may feel as though you must be a legal expert, a physical therapist,
and a building accessibility specialist to determine what
accommodations are appropriate. However, as a practical matter,
disabled individuals often know what accommodations they need to
work effectively, and most accommodations are relatively
inexpensive. Thus, by following the steps above, you can both comply
with the requirements of the ADA and show disabled individuals your
commitment to providing a productive and accessible workplace.
For additional information see, EEOC Enforcement Guidance on
reasonable accommodation, EEOC Office of Communications and
Legislative Affairs, 1801 L Street, NW, Washington, DC, 20507,
800-669-3362,
www.eeoc.gov/docs/accommodation.html and EEOC Technical
Assistance Manual, same contact information, no web site access.
For free assistance identifying appropriate accommodations, see The
Job Accommodation Network, P.O. Box 6080, Morgantown, WV, 26506-6080,
800-526-7234, www.jan.wvu.edu/ |
Personnel
Policy Service, Inc.
