In March the Equal Employment Opportunity Commission issued enforcement guidance on application of the *reasonable accommodation* and *undue hardship* standards under the Americans With Disabilities Act (ADA). While the requirements inherent in these terms are still not entirely clear, the new guidance does give employers a better idea of their obligations and risks.
The ADA requires an employer with 15 or more employees to provide reasonable accommodations to permit job performance by applicants and employees with disabilities, unless an accommodation would cause undue hardship to the employer. One of the primary difficulties for employers has always been the failure of the ADA to establish clear guidelines as to what constitutes *reasonable accommodation* and *undue hardship.* The inability of employers and employees to know exactly what is required under the Act has been at least partly responsible for the steady and substantial increase in ADA claims.
Issues covered by the new guidelines include the responsibility of individuals with disabilities to request reasonable accommodation; the ways in which employers should respond to such requests; various types of acceptable accommodations; the circumstances under which employers may ask for documentation of a disability; the relationship between the ADA and the Family and Medical Leave Act; and the parameters of undue hardship.
The guidelines divide *reasonable accommodation* into several categories: (1)*making existing facilities accessible, (2) restructuring jobs, (3)*scheduling part time work or otherwise adjusting work schedules, (4)*acquiring or modifying equipment, (5)*changing tests, training materials or policies, (6)*providing qualified readers or interpreters, and (7)*reassignments to vacant positions.
Within these categories, the guidelines contain some requirements which will prove controversial for employers. For example, an employer may not apply a no-fault leave policy, under which employees are automatically terminated, to an employee with a disability who needs leave beyond the requirements of the policy. Employers may also be required to modify workplace policies when necessitated by an individual's disability-related limitations. The employer is only required, however, to modify the policy for the disabled employee; the policy may remain in place for those without disabilities. Despite the potential effects on workplace morale, employers may not tell other employees that an employee is receiving different treatment because of a reasonable accommodation, since such disclosure would involve disclosing that the individual has a disability.
While reasonable accommodation for an employee with a disability does not necessitate modification of the essential functions of a job, it could involve modification of minor job duties if that is required for successful accommodation. Where an employee cannot be accommodated in the existing job, the employer is required to consider reassignment to other vacant positions at the work site or at any other work site of the employer, even if the employer does not normally allow transfers from one position to another or from one geographic location to another.
Further, the disabled employee may not be required to compete for the vacant position and need not be the best qualified for the position, so long as he or she is in fact qualified.
On a more positive note for employers, there is no requirement to withhold discipline or termination of an employee who violated a conduct rule that is job related, even if the violation occurred because of a disability. For example, an employer need not tolerate violence, threats of violence, stealing or destruction of property. Nor is the employer obligated to make sure that an employee takes his or her medication or that the employee is receiving appropriate medical treatment.
In determining whether a proposed accommodation would create an undue hardship to an employer, the factors considered include the nature and cost of the accommodation, the overall resources of the facility and of the employer, the type of operation of the employer, and the impact of the accommodation on the facility. An employer cannot claim undue hardship based on the fears or prejudices of customers or other employees. Perhaps more importantly, the accommodation must be provided even if it has a negative impact on the morale of other employees.
Surprisingly, an employer cannot claim undue hardship if the requested accommodation violates a collective bargaining agreement. In such situations the employer is obligated to negotiate with the union for allowance of the accommodation.
In recent years the EEOC has been processing in excess of 17,000 ADA claims each year, with a cost to employers in 1998 alone of $49 million in voluntary settlements, not including litigation costs. While the new guidelines do offer some assistance in complying with the ADA, they also present new difficulties which will continue to place employers at risk of litigation and workplace disharmony.
Dudley F. Woody
Mr. Woody is a Principal in the Firm.
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