Author: Meryl Gutterman, Nukk-Freeman & Cerra, PC
As part of its responsibilities under the ADA, an employer has a duty to consider a reasonable accommodation for a qualified individual with a disability whether the individual is a job applicant, full-time or part-time employee. The ADA defines a reasonable accommodation as any accommodation the employer can adopt without undue hardship that will enable the individual to perform the essential functions of the job.
Upon notice of the individual's disability and the individual's request for accommodation, the employer must consider which accommodations are reasonable. Set forth below are steps the employer should take to assess whether the individual's request for accommodation is reasonable.
Step 1: Establish Written Policies and Procedures for Handling Accommodation Requests
Before the employer is faced with having to evaluate an accommodation request, the employer should have in place written policies and procedures for what to do when an individual states they have a disability that the employer must accommodate. The employer should make sure that HR, or any manager or supervisor who will be responsible for handling accommodation requests knows what to do when approached by an individual making a request.
The employer should also make sure that it has written job descriptions that have been reviewed and are up-to-date with the most recent description of duties and essential tasks. The employer will want to refer to up-to-date job descriptions to adequately assess whether an individual with a disability is qualified to perform the essential functions of the job.
Employers should also integrate any state law requirements or obligations, where applicable.
Step 2: Confirm That the Individual Is a Qualified Individual With a Disability
An individual is considered disabled under the ADA if the individual:
- Has a physical or mental impairment that substantially limits one or more of their major life activities;
- Has a record of such an impairment; or
- Is regarded as having such an impairment.
A qualified individual with a disability is a person who, with one of the above conditions, has the skill, experience, education and other job-related requirements to perform the job, and who, with or without reasonable accommodation, can perform the essential functions of the job.
The employer should gather all information relating to the individual with the disability so that the employer can adequately assess appropriate accommodation options.
Step 3: Understand the Employer's Duty to Accommodate a Qualified Individual With a Disability
The ADA imposes a duty upon employers to make reasonable accommodations to aid employees in performing the essential functions of their jobs, unless the changes would create an undue hardship to the employer.
Step 4: Recognize an Accommodation Request
The employer should be able to recognize an accommodation request, which includes a request by the individual or applicant for a change in policy or other assistance that relates to the individual's employment because of his or her medical condition. Because supervisors are often the first people an employee goes to when making a request, supervisors should be trained in how to recognize an accommodation request. They should also be trained on when to refer an accommodation request to HR or another manager who is designated and prepared to receive and evaluate accommodation requests when they arise.
The employee has the burden of initiating a request for an accommodation. The request may be made at any time, can be written or verbal and does not need to use any legal words, such as "reasonable accommodation" or the ADA.
Step 5: Once the Employee Requests an Accommodation, Engage in the Interactive Process
After the individual requests an accommodation, the employer should engage in an interactive process with the individual to determine whether a reasonable accommodation exists.
After the employer has all of the information the employer needs to evaluate the limitations caused by the individual's disability, the employer should explore accommodation options that would enable the individual with a disability to perform the essential functions of the job. The employer should ask the employee whether he or she has suggestions for a reasonable accommodation. The employer should also offer suggestions for a reasonable accommodation to the employee.
The employer should be careful with what is said to an employee requesting an accommodation. For example, a supervisor should not tell an employee that his or her accommodation request is reasonable or unreasonable prior to the accommodation request being fully evaluated by HR or some other designated individual that reviews such requests.
Step 6: Evaluate if the Request Is Reasonable on a Case-By-Case Basis
Each accommodation request is fact specific and the reasonableness of an accommodation should be considered on a case-by-case basis looking at the employee's abilities, the employer's resources, the requirements, purpose and essential functions of the position, and the individual's precise limitations. The employer may also consider prior accommodations made to its employees. For instance, if an employer typically grants employees' requests to work from home as an alternative, flexible work arrangement, the employer may be less likely to deny a request to work from home when the request is made as an accommodation for a medical condition. The employer should then weigh the potential reasonable accommodations that could overcome those limitations.
The employer should explore all options and be equipped to offer documentary support of the decision and the decision-making process.
Step 7: Review Possible Reasonable Accommodations
A reasonable accommodation is an adjustment to the individual's work environment that allows the individual with a disability to perform the essential functions of his or her job. Employers should consider changes and adjustments to enable individuals with disabilities to compete for job openings, or to perform their job. The employer should review with the employee all possible reasonable accommodations.
Examples of typical reasonable accommodations include:
- Restructuring jobs by eliminating the non-essential functions of the job or by reassigning non-essential tasks;
- Exchanging assignments with other employees;
- Providing application materials to job applicants in accessible formats;
- Adjusting start times and end times and provide the employee with breaks throughout the day;
- Providing a job coach;
- Reassigning the employee to a vacant position;
- Modifying work schedules;
- Offering a part-time work schedule;
- Allowing the employee to work at home;
- Assisting the employee with non-essential job functions;
- Modifying equipment or devices;
- Offering assistive devices;
- Making facilities usable and accessible;
- Providing interpreters or qualified readers;
- Providing additional unpaid leave; and/or
- Allowing the employee to use accrued paid leave.
Step 8: Evaluate Whether Certain Conditions Make the Accommodation Unreasonable
The employer must only provide a reasonable accommodation to individuals with disabilities and may reject unreasonable requests. Examples of possible unreasonable accommodations include:
- An accommodation that removes an essential function of the job;
- Excusing violations of conduct rules to provide an accommodation;
- A request for leave that does not provide a return to work date or asks for indefinite leave;
- A leave request for an employee who has unexplained absences;
- A request to require co-workers to assist an individual with a disability to do their job;
- A modified work schedule that disrupts an employer's business;
- A request to work at home may be unreasonable if the employee is working on a team project that requires the employees to be on the premises;
- A request to create a new job;
- A request for the employer to provide readers and interpreters for personal use;
- Moving a current employee to transfer an employee with a disability into a position;
- A request that violates the employee's rights under a collective bargaining agreement; and/or
- A request that poses a direct threat to the health and safety of others.
Step 9: Understand What Makes an Accommodation Effective
An accommodation is effective if:
- It provides an individual with a disability an equal opportunity to participate in the application process;
- The employee with a disability attains the same level of performance as co-workers in the same position; or
- The employee with a disability enjoys the benefits and privileges of employment available to all employees.
The benefits and privileges of employment to which an employee with a disability is entitled include:
- Access to information communicated in the workplace;
- The opportunity to participate in employer-sponsored events; and
- The opportunity for professional advancement.
Step 10: Discuss All Possible Accommodations
The employer does not need to provide the employee with the exact accommodation the employee requests. The supervisor and/or HR and the employee should discuss during the interactive process the benefits and detriments of each accommodation proposed.
If an accommodation causes an undue hardship, consider a different accommodation that is less onerous. If there is more than one possible accommodation, the employer may choose one that is less expensive or easier to provide.
The employer should be flexible when assessing how to enable an employee with a disability to overcome his or her limitations. If the employer is not confident about a possible reasonable accommodation, the employer can offer a trial period to assess whether the accommodation is sufficient.
When doing so, the employer should document all possible requests for accommodations, and should document which accommodation was chosen and why.
Step 11: Evaluate Whether the Proposed Accommodation Will Create an Undue Hardship for the Employer
It is unlawful for an employer to fail to provide a reasonable accommodation to a qualified employee or applicant with a disability, unless the accommodation imposes an undue hardship on the employer's business operations. In considering whether an undue hardship exists, the employer should consider the nature and cost of the accommodation needed. During this analysis, the employer should consider their overall financial resources, the number of individuals employed by the employer, the effect on expenses and resources, and the impact of the accommodation needed upon the operation of the facility.
The employer may also look at the type of operation of the employer, including the composition, structure, and functions of the workforce of the employer.
The employer does not need to provide an accommodation that will cause the employer to lower production standards.
Step 12: Consider Hiring an Outside Third Party Consultant or Expert
The employer may consider hiring an outside consultant if the employer and the employee cannot agree upon a reasonable accommodation. An outside consultant may be able to facilitate with assistive technologies or modifications to help the employee with a disability perform the essential functions of the job. The expert should be provided with an up to date and accurate job description, an understanding of the employee's limitations, and any accommodations that have been considered and rejected.
Step 13: Remember the Employer's Obligations Are Ongoing
The employer has an ongoing duty to provide a reasonable accommodation to a qualified individual with a disability. Therefore, the employer must continue to monitor an employee's progress with the accommodation and evaluate whether the accommodation needs to be adjusted based on the status of the individual's medical condition. The employer may need to provide more accommodation at times or modify the accommodation if the limitations of the individual with a disability change. The employer should document all efforts made to revisit the individual with a disability and modify the accommodations provided.
Step 14: Document, Document, Document
The employer must make sure to document all phases of the interactive process, including all meetings and conversations with the individual regarding potential accommodations. The employer should document all requests for accommodations, all options explored, and the decision making process, including which accommodation was chosen and why, and which accommodations were not chosen and why.
The employer should also be sure to document any request for accommodation, even if the request is non-medical, such as a request to work from home on a temporary basis. The employer should be clear that the employer will monitor all accommodations granted, and make any modifications that are necessary going forward.
The employer must have written support showing how its decisions were made based on nondiscriminatory and nonretaliatory business reasons.