The Equal Employment Opportunity Commission (EEOC) has issued detailed policy guidance on employers' obligation to provide reasonable accommodations under the Americans with Disabilities Act (ADA). The guidance clarifies the EEOC's position and is presented in a question-and-answer format. Although the policy guidance lacks the force of law, such EEOC pronouncements are often followed by federal courts.
Obligation to provide accommodation
The ADA requires you to provide reasonable accommodation to qualified individuals with disabilities who are employees or job applicants unless doing so would cause undue hardship. The guidance explains that reasonable accommodations are to be provided to qualified employees with disabilities regardless of whether they work part-time or full-time or are considered "probationary."
The ADA does not define "reasonable accommodation" but provides examples of the changes or modifications that may be required. The guidance confirms that the only limitation on the extent of your obligation to make changes or modifications is the standard of "undue hardship." Undue hardship under the ADA means "significant difficulty or expense," which depends on the resources and circumstances of a particular employer in relation to the cost or difficulty of providing a specific accommodation.
Requests for accommodation
The guidance confirms that you have no obligation to provide reasonable accommodation until the disabled individual or his or her representative informs you that he or she needs an adjustment or change at work related to a medical condition. According to the EEOC, this request is supposed to initiate an interactive process between the individual and you to determine if there is a reasonable accommodation.
The guidance explains that if the disability or need for accommodation is not obvious, you are entitled to receive documentation from a health professional regarding the individual's disability and functional limitations. However, it cautions that you may not request the employee's complete medical record or information unrelated to the disability.
Accommodation in the application process
The guidance explains that you may inform job-seekers about the application process and ask if a reasonable accommodation will be needed during the process. However, before a conditional offer is made, you may not generally ask applicants whether a reasonable accommodation will be needed to perform the job unless an applicant's disability is obvious or he or she voluntarily discloses this information and you reasonably believe an accommodation will be needed.
The guidance also takes the position that you must provide accommodation to a qualified applicant with a disability during the application process (unless you can show undue hardship), even if you believe that you will be unable to provide reasonable accommodation for the individual to perform the job.
Types of reasonable accommodation suggested by the EEOC
The EEOC recommends the following types of accommodation:
- Access to benefits and privileges of employment. You must ensure that employees with disabilities have access to information that is provided to similarly situated employees without disabilities, regardless of whether they need it to perform their jobs. For example, if you use a public address system for announcements, you must provide a deaf employee with equal access to office communications by sending an advance copy of all announcements by electronic mail or paper copy. You must also provide reasonable accommodation that will enable employees with disabilities to participate in employer-sponsored training, unless you can show undue hardship.
- Job restructuring. In reallocating or redistributing marginal job functions as a reasonable accommodation, you may assign the marginal functions of co-workers to the employee with a disability.
- Leave. Permitting the use of accrued paid leave or unpaid leave is a form of reasonable accommodation when necessitated by a disability. You may not apply a "no-fault" leave policy to discipline or terminate someone with a disability who takes additional time off work for reasons necessitated by the disability.
- An employee with a disability is entitled to return to his or her same job after leave unless you can show undue hardship. Otherwise, you must consider whether there is a vacant equivalent position for which the employee is qualified.
- Modified or part-time schedule. You must allow an employee with a disability to work a modified or part-time schedule as a reasonable accommodation, absent undue hardship. However, for certain positions, the essential duties of the job may necessitate a particular work schedule so that modifications could significantly disrupt your operations and constitute an undue hardship.
- Modified workplace policies. Modifying workplace policies is a form of reasonable accommodation for an individual with a disability. You need not modify policies for other employees. For example, if you have a policy prohibiting employees from eating or drinking at their workstations, you must modify your policy, absent undue hardship, to allow an employee with insulin-dependent diabetes to keep food at the workstation and eat or drink when his or her insulin level necessitates.
- Reassignment. Reassignment to a vacant position for which the employee is qualified is a form of reasonable accommodation when necessitated by the disability. The employee must be qualified for the new position. However, the guidance takes the view that the employee does not need to be the best-qualified individual for the position to obtain it as a reasonable accommodation.
- Furthermore, if there is no vacant equivalent position, you must consider vacant lower-level positions for which the employee is qualified. The guidance defines a "vacant" position as one that is currently available or that you know will be available within a reasonable period of time. It also clarifies that reassignment does not include a vacant position that would be considered a promotion.
- Other reasonable accommodation issues. The guidance confirms that the obligation to provide reasonable accommodation is an ongoing duty. In fact, it states that you may be required to provide more than one reasonable accommodation for a given individual with a disability. For example, if a reasonable accommodation turns out to be ineffective (i.e., does not enable the individual to perform the essential functions of the position), then you must consider whether there is an alternative reasonable accommodation. Furthermore, if there is no alternative, the guidance requires you to attempt to reassign the employee to a vacant position for which he or she is qualified unless to do so would cause an undue hardship.
Finally, you may need to consider allowing an employee with a disability to work at home as a reasonable accommodation if the essential functions of the job can be performed at home and doing so would not cause an undue hardship.
The guidance reinforces court decisions that have held that you never have to excuse the violation of a uniformly applied workplace conduct rule that is job-related for the position in question and consistent with business necessity. For example, you may discipline or discharge any employee (including an employee with a disability) for violence, threats of violence, stealing, or destruction of property.
The guidance takes the position that you have no obligation to monitor an employee's medication or ensure that the employee is receiving appropriate treatment because this does not involve a workplace barrier. Thus, if an employee cannot perform the essential functions of the job or poses a direct threat in the absence of such medical treatment, then the employee is unqualified.
Undue hardship issues
A determination of undue hardship according to the guidance must be made on a case-by-case basis. You cannot claim undue hardship based on employees' (or customers') fears or prejudices about a disability.
Undue hardship cannot be based on negative morale issues caused by the provision of reasonable accommodation. However, you may be able to establish undue hardship if reasonable accommodation would be unduly disruptive to other employees' ability to work.
Finally, the guidance takes the position (contrary to some court decisions) that you are not excused from providing a reasonable accommodation based on undue burden simply because the reasonable accommodation violates a collective bargaining agreement. Rather, the EEOC takes the position that the ADA requires you to attempt to provide reasonable accommodation without violating the collective bargaining agreement and, if no other reasonable accommodation is possible, to negotiate with the union regarding a variance to the collective bargaining agreement.
The guidance provides helpful answers to a number of questions on reasonable accommodation and undue burden. However, it takes positions on some issues that are contrary to court decisions and may not be enforced by the courts. Further, it is conspicuously silent on two key issues:
- whether employees who are "regarded as" disabled under the ADA must be provided with reasonable accommodation; and
- whether the ADA or a collective bargaining agreement controls in the case of a direct conflict.
The guidance also includes an appendix listing resources that may prove helpful in implementing reasonable accommodation, as well as a summary for smaller employers.