Since the enactment of the Americans with Disabilities Act ("ADA"), employers and courts alike have struggled to make sense of the ADA's reasonable accommodation requirement. In March 1999, the Equal Employment Opportunity Commission ("EEOC") issued its first Enforcement Guidance to clarify an employer's obligations to reasonably accommodate the disabilities of employees. The EEOC's Guidance attempts to answer more fully questions such as: (1) who is entitled to a reasonable accommodation; (2) what constitutes a request for a reasonable accommodation; (3) when may an employer ask questions or seek documentation regarding a disability; (4) what is a reasonable accommodation; and (5) when may an employer legitimately claim that an accommodation poses an undue hardship. The Guidance also addresses somewhat the interplay between the ADA and the Family and Medical Leave Act ("FMLA").
Who is entitled to a reasonable accommodation
The Guidance emphasizes that the focus during the hiring process is not on the need for accommodation to perform the job but on providing the applicant with a fair opportunity to compete for the position. The Guidance provides that even where an employer thinks that it will not be able to provide an applicant with a reasonable accommodation necessary to perform the essential functions of the position, it still must provide the applicant with the accommodation necessary to participate in the application process. For example, if a deaf applicant requests a sign language interpreter for the interview, the employer cannot cancel the interview because it assumes that the applicant cannot perform the essential functions of the job. Rather, the employer must provide the interpreter (absent any undue hardship), and evaluate the individual as it would any other applicant. Once the employer determines whether the individual is otherwise qualified, then the employer may inquire as to what extent the applicant would need a reasonable accommodation if hired.
Requesting a Reasonable Accommodation
The Guidance makes clear that a request for accommodation need not be in writing nor come from the disabled individual. It may come from the individual's family, friend, health professional or representative. Indeed, the Guidance assumes what most employers understand: few applicants or employees will walk into an employer's office and say "I need a reasonable accommodation under the ADA." Most individuals will present an employer with a set of facts that may indirectly indicate the need for an accommodation. For example, an employee may tell a supervisor, "I am having trouble getting to work on time because of the medication I am taking," or an employee's doctor may send a note indicating that the employee cannot lift more than 50 pounds.
These scenarios are sufficient to satisfy the employee's duty to alert the employer of the need for an accommodation or change in work condition for a reason related to a physical or mental condition. Conversely, where an employee simply requests a new chair because the current one is uncomfortable, that alone is insufficient to alert the employer because it does not link the requested change in working conditions to a physical or mental condition.
The Guidance specifies that once an employee satisfies the burden of alerting the employer to a potential need for accommodation, this triggers the employer's obligation to engage in an interactive process with the employee. The employer needs to determine whether the individual has a qualified disability under the ADA, what functional limitations are caused by the disability and what reasonable accommodation can be provided.
Employer's Request for Documentation
Where a disability or the need for an accommodation is not obvious, the Guidance allows employers to ask an individual for reasonable documentation about the disability and about any functional limitations from an appropriate health care provider or rehabilitation professional. Under the Guidance, reasonable documentation includes only the documentation that is needed to establish that a person has a disability under the ADA and that the disability necessitates a reasonable accommodation. Therefore, employers should take care in these situations not to request an employee's entire medical history or information unrelated to determining the existence of a disability.
In the alternative, the employer may choose to discuss with the individual the nature of the disability and the need for further information. The Guidance specifies that the employer should make it clear to the individual why it is requesting the information. An employer may also arrange for the individual to see a health care or rehabilitation specialist (at the employer's expense) to determine the nature of the disability. Under the Guidance, if the need for an accommodation is not obvious and the individual refuses to provide reasonable documentation or information, then there will be no entitlement to a reasonable accommodation.
What is a Reasonable Accommodation
The Guidance explains that a reasonable accommodation may take many forms, including: job restructuring, leave, reassignment, modification of work-place policies, making facilities accessible, modified hours or duties, or acquiring or modifying equipment. While the acquisition of equipment may be reasonable, an employer need not provide an employee with personal use items such as a hearing aide or prosthetic limb that are needed in accomplishing daily activities both on and off the job. The Guidance would require, for example, that an employee with a hearing disability be provided with a TTY relay phone service in order to communicate with the public. Similarly, a cashier who is easily fatigued due to a medical condition may require a stool in order to complete a shift.
The Guidance acknowledges that an employer is not required to eliminate an essential function of an employee's job or to lower its production standards. However, the Guidance nonetheless makes it clear that an employer may be required to restructure a job, reallocate marginal job functions that an employee is unable to perform because of a disability, or alter when and how a particular function is performed. When these adjustments are made, the employer may require the employee to assume other marginal functions previously assigned to other employees.
The Guidance provides that employers may be required to modify policies (i.e. an attendance policy), or to reassign an employee to a vacant position as a reasonable accommodation. Reassignment is considered a last resort, required only if there are no effective accommodations (that would not impose an undue hardship) enabling the employee to perform the essential functions of the position.
Leave and Part-time Accommodations Under the ADA and the FMLA
The Guidance recognizes that the issue of leave as a reasonable accommodation may require consideration of an employee's rights under the FMLA as well as the ADA. However, the Guidance provides little concrete direction in such circumstances. The Guidance does specify that an employee who is protected by the ADA and whose FMLA leave entitlement expires may be entitled to additional leave time required as a reasonable accommodation. An employer may have an obligation during a leave to hold open an employee's position as a reasonable accommodation, unless doing so would impose an undue hardship. The Guidance provides that, even in cases where an employee's request for a modified or intermittent work schedule would pose an undue hardship, if the employee is eligible for a modified schedule under the FMLA, the employer also has an obligation to accommodate the employee under the ADA. Perhaps the most important advice provided by the Guidance is that employers should analyze an employee's rights under each of the statutes separately and then determine whether the two statutes overlap or conflict.
The Guidance does not attempt to disturb the basic principle that employers are not required to make reasonable accommodations under the ADA that would result in an undue hardship. The Guidance defines "undue hardship" as significant difficulty or expense. The inquiry focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation. Thus, employers should determine undue hardship on a case-by-case basis, relying 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 employees 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 guidance specifically instructs that the employer should determine whether funding is available from an outside source, such as a state rehabilitation agency, to help defray the cost of an accommodation. The employer should also consider tax credits or eligibility for deductions, and should determine whether the employee is willing to pay the portion of the costs that would impose an undue burden. Before an employer may claim that it cannot accommodate an employee's disability, the employer is obligated to ensure that no reasonable accommodation exists that does not impose an undue hardship.
In its Guidance on reasonable accommodation, the EEOC has not attempted to extend dramatically an employer's obligations under the ADA. Rather, the agency provides some clarity on employer's rights and responsibilities regarding reasonable accommodation. While the guidance is not legally binding, it is entitled to due deference by the courts. The Guidance should serve as another useful yardstick to employers grappling with reasonable accommodation issues under the ADA.