|
|
The U.S. Equal Employment Opportunity
Commission
Introduction
The Americans
with Disabilities Act (ADA) requires an employer with 15 or more employees to provide
reasonable accommodation for individuals with disabilities, unless it would cause undue
hardship. A reasonable accommodation is any change in the work environment or in the way a
job is performed that enables a person with a disability to enjoy equal employment
opportunities. There are three categories of "reasonable accommodations":
- changes
to a job application process
- changes to the work environment, or to the way
a job is usually done
- changes
that enable an employee with a disability to enjoy equal benefits and privileges
of employment (such as access to training).
Although many individuals with disabilities can apply for
and perform jobs without any reasonable accommodations, workplace barriers may keep others
from performing jobs which they could do with some form of accommodation. These barriers
may be physical obstacles (such as inaccessible facilities or equipment), or they may be
procedures or rules (such as rules concerning when work is performed, when breaks are
taken, or how job tasks are performed). Reasonable accommodation removes workplace
barriers for individuals with disabilities.
This guide answers some of the key questions facing small
businesses in connection with reasonable accommodations. It explains the obligations of
both employers and individuals with disabilities, and reviews the limits on how far
employers must go in providing reasonable accommodations.
This guide is adapted from the Equal Employment Opportunity
Commission's Enforcement Guidance on
Reasonable Accommodation and Undue Hardship Under the ADA. Small employers wishing to
learn more about reasonable accommodation and undue hardship should call 1-800-669-3362
to request a free copy of the Enforcement Guidance, or review it at EEOC's website, www.eeoc.gov.
Requesting Reasonable Accommodation
- How
must an individual request a reasonable accommodation?
The individual must let the employer know that s/he needs an
adjustment or change at work for a reason related to a medical condition. An individual
may use "plain English" and need not mention the ADA or use the phrase
"reasonable accommodation." Requests for reasonable accommodation do not need to
be in writing, though an employer may choose to write a memorandum or letter confirming
the request.
- What
must an employer do after receiving a request for reasonable accommodation?
When the disability and/or the need for
accommodation is not obvious, the employer may ask the individual for reasonable
documentation about his/her disability and functional limitations.
The employer and the individual with a disability should engage
in an informal process to clarify what the individual needs and identify the
appropriate reasonable accommodation. The employer may ask the individual questions that
will enable it to make an informed decision about the request. This includes asking what
type of reasonable accommodation is needed.
There are extensive public and private resources to help
employers and individuals with disabilities who are not familiar with possible
accommodations. (See the Appendix to this guide for a resource directory to help identify
reasonable accommodations.)
- Must
an employer provide the reasonable accommodation that the individual wants?
The employer may choose among reasonable
accommodations as long as the chosen accommodation is effective (i.e., it removes the
workplace barrier at issue). The employer may offer alternative suggestions for
reasonable accommodations to remove the workplace barrier in question. If there are two
possible reasonable accommodations, and one costs more or is more difficult to provide,
the employer may choose the one that is less expensive or easier to provide, as long as it
is effective.
- How
quickly must an employer respond to a request for reasonable accommodation?
An employer should respond promptly to a request for reasonable
accommodation. If the employer and the individual with a disability need to engage in an
interactive process, this too should proceed as quickly as possible. Similarly, the
employer should act promptly to provide the reasonable accommodation.
Types Of Reasonable Accommodations
There are many different kinds of reasonable
accommodations. Below is information on some of them.
- Is restructuring
a job a reasonable accommodation?
Yes.
This includes: (1) shifting responsibility to other employees for minor job tasks that an
employee is unable to perform because of a disability; and (2) altering when and/or how a
job task is performed. If an employee is unable to perform a minor job task because of a
disability, an employer can require the employee to perform a different minor job function
in its place.
- Is
providing leave necessitated by an employee's disability a form of
reasonable accommodation? 1
Yes, absent undue hardship, providing unpaid leave is a form of
reasonable accommodation. However, an employer does not have to provide more paid
leave than it provides to other employees.
- May
an employer apply a "no-fault" leave policy, under which
employees are automatically terminated after they have been on leave for a certain period
of time, to an employee with a disability who needs additional leave?
If an employee with a disability needs additional unpaid leave as a
reasonable accommodation, the employer must provide the employee with the additional leave
even if it has a “no-fault” policy. An employer, however, does not need to
provide leave if: (1) it can provide an effective accommodation that allows the person to
keep working, or (2) it can show that granting additional leave would cause an undue
hardship.
- When
an employee requests leave as a reasonable accommodation, may an employer provide an
accommodation that requires him/her to remain on the job instead?
Yes, if the employer's proposed reasonable accommodation would be
effective and eliminate the need for leave. Accordingly, an employer may reallocate minor
job tasks or provide a temporary transfer instead of leave, so long as the employee can
still address his/her medical needs.
- Is
a modified or part-time schedule a reasonable accommodation?
Yes, absent undue hardship. A modified schedule may involve
adjusting arrival or departure times, providing periodic breaks, altering when certain job
tasks are performed, allowing an employee to use accrued paid leave, or providing
additional unpaid leave.
- Is
it a reasonable accommodation to modify a workplace policy because of an
employee's disability?
Yes. For example,
granting an employee time off from work or an adjusted work schedule as a reasonable
accommodation may involve modifying leave or attendance procedures or policies. However,
reasonable accommodation only requires that the employer modify the policy for an employee
with a disability. The employer may continue to apply the policy to all other employees.
- Does an employer have to reassign to a vacant
position an employee who can no longer perform his/her job because of a
disability?
Yes, unless the employer can show that
it would be an undue hardship. The following criteria apply to reassignment:
An
employee must be "qualified" for the new position. This means that s/he: (1)
satisfies the skill, experience, education, and other job-related requirements of the
position, and (2) can perform the primary job tasks of the new position, with or without
reasonable accommodation. The employer does not have to assist the employee to become
qualified.
An employer does not have to bump other employees or create
a position. Nor does an employer have to promote the employee.
Reassignment
should be to a position that is equal in pay and status to the
position that the employee held, or to one that is as close as possible in terms of pay
and status if an equivalent position is not vacant.
- Does
a reasonable accommodation include changing a person's supervisor?
No. The ADA may, however, require that supervisory methods, such as
the method of communicating assignments, be altered as a form of reasonable accommodation.
Other Reasonable Accommodation Issues
- Are there certain things that are not considered
reasonable accommodations and are therefore not required?
- An
employer does not have to eliminate a primary job responsibility.
- An employer is not required to lower production
standards that are applied to all employees, though it may have to provide
reasonable accommodation to enable an employee with a disability to meet them.
- An
employer does not have to provide personal use items, such as a
prosthetic limb, a wheelchair, eyeglasses, hearing aids, or similar devices.
- An
employer never has to excuse a violation of a uniformly applied conduct rule
that is job-related and consistent with business necessity. This means, for example,
that an employer never has to tolerate or excuse violence, threats of violence, stealing,
or destruction of property. An employer may discipline an employee with a disability for
engaging in such misconduct if it would impose the same discipline on an employee without
a disability.
- May
an employer tell other employees that someone is receiving a reasonable
accommodation?
No, because this usually
amounts to a disclosure that the individual has a disability. The ADA specifically
prohibits the disclosure of medical information except in certain limited situations,
which do not include disclosure to coworkers.
An employer may certainly respond to a question from an
employee about why a coworker is receiving what is perceived as "different" or
"special" treatment by emphasizing its policy of assisting any employee who
encounters difficulties in the workplace. The employer also may find it helpful to point
out that many of the workplace issues encountered by employees are personal, and that, in
these circumstances, it is the employer's policy to respect employee privacy. An employer
may be able to make this point effectively by reassuring the employee asking the question
that his/her privacy would similarly be respected if s/he found it necessary to ask the
employer for some kind of workplace change for personal reasons. Employers might also find
it helpful to provide all employees with information about various laws that require
employers to meet certain employee needs (e.g., the ADA and the Family and Medical Leave
Act), while also requiring them to protect the privacy of employees.
- May
an employer ask whether a reasonable accommodation is needed when an employee
with a disability has not asked for one?
If an
employer knows that an employee has a disability, it may ask whether s/he needs a
reasonable accommodation when it reasonably believes that the employee may need an
accommodation. An employer also may ask an employee with a disability who is having
performance or conduct problems if s/he needs reasonable accommodation.
Undue Hardship:
Limits On Providing Reasonable Accommodations
An employer never has to provide any reasonable
accommodation that causes undue hardship, meaning significant difficulty
or expense. Undue hardship refers not only to financial difficulty, but to reasonable
accommodations that are unduly extensive or disruptive, or those that would fundamentally
alter the nature or operation of the business.
Every request for reasonable accommodation should be
evaluated separately to determine if it would impose an undue hardship, taking into
account:
- the nature and cost of the accommodation needed;
- the overall financial resources of the business; the number
of persons employed by the business; and the effect on expenses and resources of the
business;
- the impact of the accommodation on the business.
If cost is an issue, an employer should determine whether
funding is available from an outside source, such as a state rehabilitation agency, to pay
for all or part of the accommodation. In addition, the employer should determine whether
it is eligible for certain tax credits or deductions to offset the cost of the
accommodation. Also, to the extent that a portion of the cost of an accommodation causes
undue hardship, the employer should ask the individual with a disability if s/he will pay
the difference.
An
employer cannot claim undue hardship based on employees' (or customers') fears or
prejudices, or because providing a reasonable accommodation might have a negative
impact on employee morale. Employers, however, may claim undue hardship where a reasonable
accommodation would be unduly disruptive to other employees' ability to work.
- Must
an employer modify the work hours of an employee with a disability if doing so would
prevent other employees from performing their jobs?
No. If modifying one employee's work hours (or granting leave) would
prevent other employees from doing their jobs, then the significant disruption to the
operations of the employer constitutes an undue hardship.
- Can
an employer deny a request for leave when an employee cannot provide a fixed date
of return?
In some situations, an
employee may be able to provide only an approximate date of return
because treatment and recuperation do not always permit exact timetables. If an employer
is able to show that the lack of a fixed return date imposes an undue hardship, then it
can deny the leave. Undue hardship could result if the employer can neither plan for the
employee's return nor permanently fill the position. In other situations, an employer may
be able to be flexible.
Footnote:
1 Employers who are covered by the
Family and Medical Leave Act (FMLA) may have obligations under that law, as well as the ADA.
For more information on how these two laws apply to leave and modified schedules,
employers may consult the EEOC's Enforcement
Guidance on Reasonable Accommodation and Undue Hardship Under the ADA and the EEOC's Fact Sheet on the FMLA and the ADA.
APPENDIX
Resources For Locating Reasonable Accommodations
U.S. Equal Employment Opportunity Commission
1-800-669-3362 (Voice) 1-800-800-3302 (TT)
The EEOC's Publication Center has many free documents on
the Title I employment provisions of the ADA, including both the statute, 42 U.S.C. §
12101 et seq. (1994), and the regulations, 29 C.F.R. § 1630 (1997). In addition, the EEOC
has published a great deal of basic information about reasonable accommodation and undue
hardship. The two main sources of interpretive information are: (1) the Interpretive
Guidance accompanying the Title I regulations (also known as the "Appendix" to
the regulations), 29 C.F.R. pt. 1630 app. §§ 1630.2(o), (p), 1630.9 (1997) , and (2) A
Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with
Disabilities Act III, 8 FEP Manual (BNA) 405:6981, 6998-7018 (1992). The Manual
includes a 200-page Resource Directory, including federal and state agencies,
rehabilitation agencies (that may be able to pay some/all of the costs for certain
reasonable accommodations), and disability organizations that can provide assistance in
identifying and locating reasonable accommodations.
The EEOC also has discussed issues involving reasonable
accommodation in the following guidances and documents: (1) Enforcement Guidance:
Preemployment Disability-Related Questions and Medical Examinations at 5, 6-8, 20, 21-22,
8 FEP Manual (BNA) 405:7191, 7192-94, 7201 (1995); (2) Enforcement Guidance: Workers'
Compensation and the ADA at 15-20, 8 FEP Manual (BNA) 405:7391, 7398-7401 (1996); (3)
Enforcement Guidance: The Americans with Disabilities Act and Psychiatric Disabilities at
19-28, 8 FEP Manual (BNA) 405:7461, 7470-76 (1997); and (4) Fact Sheet on the Family and
Medical Leave Act, the Americans with Disabilities Act, and Title VII of the Civil Rights
Act of 1964 at 6-9, 8 FEP Manual (BNA) 405:7371, 7374-76 (1996).
Finally, the EEOC has a poster that employers and labor
unions may use to fulfill the ADA's posting requirement.
All of the above-listed documents, with the exception of
the ADA Technical Assistance Manual and Resource Directory and the poster, are also
available through the Internet at http://www.eeoc.gov.
U.S. Department of Labor (To obtain
information on the Family and Medical Leave Act)
To request written materials: 1-800-959-3652 (Voice)
1-800-326-2577 (TT)
To ask questions: (202) 219-8412 (Voice)
Internal Revenue Service (For information
on tax credits and deductions for providing certain reasonable accommodations)
(202) 622-6060 (Voice)
Job Accommodation Network (JAN)
1-800-232-9675 (Voice/TT)
http://janweb.icdi.wvu.edu/
A service of the President's Committee on Employment of
People with Disabilities. JAN can provide information, free-of-charge, about many types of
reasonable accommodations.
ADA Disability and Business Technical Assistance
Centers (DBTACs)
1-800-949-4232 (Voice/TT)
The DBTACs consist of 10 federally funded regional centers
that provide information, training, and technical assistance on the ADA. Each center works
with local business, disability, governmental, rehabilitation, and other professional
networks to provide current ADA information and assistance, and places special emphasis on
meeting the needs of small businesses. The DBTACs can make referrals to local sources of
expertise in reasonable accommodations.
Registry of Interpreters for the Deaf
(301) 608-0050 (Voice/TT)
The Registry offers information on locating and using
interpreters and transliteration services.
RESNA Technical Assistance Project
(703) 524-6686 (Voice) (703) 524-6639 (TT)
http://www.resna.org/hometa1.htm
RESNA, the Rehabilitation Engineering and Assistive
Technology Society of North America, can refer individuals to projects in all 50 states
and the six territories offering technical assistance on technology-related services for
individuals with disabilities. Services may include:
- information and referral centers to help determine what
devices may assist a person with a disability (including access to large data bases
containing information on thousands of commercially available assistive technology
products),
- centers where individuals can try out devices and equipment,
- assistance in obtaining funding for and repairing devices,
and
- equipment exchange and recycling programs.
|
