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The U.S. Equal Employment Opportunity
Commission
Table of Contents
Introduction
General Principles
Requesting Reasonable Accommodation
Reasonable Accommodation And Job
Applicants
Reasonable Accommodation Related To
The Benefits And Privileges Of Employment
Types Of Reasonable Accommodations
Related To Job Performance
Job Restructuring
Leave
Modified Or Part-Time Schedule
Modified Workplace Policies
Reassignment
Other Reasonable Accommodation Issues
Undue Hardship Issues
Instructions For Investigators
Appendix: Resources For Locating
Reasonable Accommodations
Index
Enforcement Guidance:
Reasonable Accommodation And Undue Hardship
Under The Americans With Disabilities Act
This Enforcement Guidance clarifies the rights and
responsibilities of employers and individuals with disabilities regarding reasonable
accommodation and undue hardship. Title I of the ADA requires an employer to provide
reasonable accommodation to qualified individuals with disabilities who are employees or
applicants for employment, except when such accommodation would cause an undue hardship.
This Guidance sets forth an employer's legal obligations regarding reasonable
accommodation; however, employers may provide more than the law requires.
This Guidance examines what "reasonable
accommodation" means and who is entitled to receive it. The Guidance addresses what
constitutes a request for reasonable accommodation, the form and substance of the request,
and an employer's ability to ask questions and seek documentation after a request has been
made.
The Guidance discusses reasonable accommodations applicable
to the hiring process and to the benefits and privileges of employment. The Guidance also
covers different types of reasonable accommodations related to job performance, including
job restructuring, leave, modified or part-time schedules, modified workplace policies,
and reassignment. Questions concerning the relationship between the ADA and the Family and
Medical Leave Act (FMLA) are examined as they affect leave and modified schedules.
Reassignment issues addressed include who is entitled to reassignment and the extent to
which an employer must search for a vacant position. The Guidance also examines issues
concerning the interplay between reasonable accommodations and conduct rules.
The final section of this Guidance discusses undue
hardship, including when requests for schedule modifications and leave may be denied.
Reasonable Accommodation
Title I of the Americans with Disabilities Act of 1990 (the
"ADA")(1) requires an employer(2)
to provide reasonable accommodation to qualified individuals with disabilities who are
employees or applicants for employment, unless to do so would cause undue hardship.
"In general, an accommodation is any change in the work environment or in the way
things are customarily done that enables an individual with a disability to enjoy equal
employment opportunities."(3) There are three
categories of "reasonable accommodations":
"(i) modifications or adjustments to a job
application process that enable a qualified applicant with a disability to be
considered for the position such qualified applicant desires; or
(ii) modifications or adjustments to the work
environment, or to the manner or circumstances under which the position
held or desired is customarily performed, that enable a qualified individual with
a disability to perform the essential functions of that position; or
(iii) modifications or adjustments that enable a covered
entity's employee with a disability to enjoy equal benefits and privileges of
employment as are enjoyed by its other similarly situated employees without
disabilities."(4)
The duty to provide reasonable accommodation is a
fundamental statutory requirement because of the nature of discrimination faced by
individuals with disabilities. Although many individuals with disabilities can apply for
and perform jobs without any reasonable accommodations, there are workplace barriers that
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 essential or marginal functions are performed). Reasonable
accommodation removes workplace barriers for individuals with disabilities.
Reasonable accommodation is available to qualified
applicants and employees with disabilities.(5) Reasonable
accommodations must be provided to qualified employees regardless of whether they work
part-time or full-time, or are considered "probationary." Generally, the
individual with a disability must inform the employer that an accommodation is needed.(6)
There are a number of possible reasonable accommodations
that an employer may have to provide in connection with modifications to the work
environment or adjustments in how and when a job is performed. These include:
- making existing facilities accessible;
- job restructuring;
- part-time or modified work schedules;
- acquiring or modifying equipment;
- changing tests, training materials, or policies;
- providing qualified readers or interpreters; and
- reassignment to a vacant position.(7)
There are several modifications or
adjustments that are not considered forms of reasonable accommodation. An
employer does not have to eliminate an essential function, i.e., a fundamental duty
of the position. This is because a person with a disability who is unable to perform the
essential functions, with or without reasonable accommodation,(8)
is not a "qualified" individual with a disability within the meaning of the ADA.
Nor is an employer required to lower production standards -- whether qualitative or
quantitative(9) -- that are applied uniformly to employees
with and without disabilities. However, an employer may have to provide reasonable
accommodation to enable an employee with a disability to meet the production standard.
While an employer is not required to eliminate an essential function or lower a production
standard, it may do so if it wishes.
An employer does not have to provide as
reasonable accommodations personal use items needed in accomplishing daily activities
both on and off the job. Thus, an employer is not required to provide an employee with a
prosthetic limb, a wheelchair, eyeglasses, hearing aids, or similar devices if they are
also needed off the job. Furthermore, an employer is not required to provide personal use
amenities, such as a hot pot or refrigerator, if those items are not provided to employees
without disabilities. However, items that might otherwise be considered personal may be
required as reasonable accommodations where they are specifically designed or required to
meet job-related rather than personal needs.(10)
A modification or adjustment satisfies the
reasonable accommodation obligation if it is "effective."(11) In the context of job performance, this means that a
reasonable accommodation enables the individual to perform the essential functions of the
position. Similarly, an effective accommodation will enable an applicant with a disability
to have an equal opportunity to participate in the application process and to be
considered for a job. Finally, a reasonable accommodation will be effective if it allows
an employee with a disability an equal opportunity to enjoy the benefits and privileges of
employment that employees without disabilities enjoy.
Example A: An employee with a hearing disability
must be able to contact the public by telephone. The employee proposes that he use a TTY(12) to call a relay service operator who can then place the
telephone call and relay the conversation between the parties. This is a reasonable
accommodation because it is effective. It enables the employee to communicate with the
public.
Example B: A cashier easily becomes fatigued because
of lupus and, as a result, has difficulty making it through her shift. The employee
requests a stool because sitting greatly reduces the fatigue. This reasonable
accommodation is effective because it removes a workplace barrier -- being required to
stand -- and thus gives the employee the opportunity to perform as well as any other
cashier.
The term "reasonable accommodation" is a term of
art that Congress defined only through examples of changes or modifications to be made, or
items to be provided, to a qualified individual with a disability. The statutory
definition of "reasonable accommodation" does not include any quantitative,
financial, or other limitations regarding the extent of the obligation to make changes to
a job or work environment.(13) The only statutory
limitation on an employer's obligation to provide "reasonable accommodation" is
that no such change or modification is required if it would cause "undue
hardship" on the employer.(14) Undue
hardship addresses quantitative, financial, or other limitations on an employer's ability
to provide reasonable accommodation.
Undue Hardship
"Undue hardship" means significant difficulty or
expense and focuses on the resources and circumstances of the particular employer in
relationship to the cost or difficulty of providing a specific accommodation. Undue
hardship refers not only to financial difficulty, but to reasonable accommodations that
are unduly extensive, substantial, or disruptive, or those that would fundamentally alter
the nature or operation of the business.(15) An employer
must assess on a case-by-case basis whether a particular reasonable accommodation would
cause undue hardship. The ADA's "undue hardship" standard is different from that
applied by courts under Title VII of the Civil Rights Act of 1964 for religious
accommodation.(16)
- How must an individual request
a reasonable accommodation?
When an individual
decides to request accommodation, the individual or his/her representative must let the
employer know that s/he needs an adjustment or change at work for a reason related to a
medical condition. To request accommodation, an individual may use "plain
English" and need not mention the ADA or use the phrase "reasonable
accommodation."(17)
Example A: An employee tells her supervisor,
"I'm having trouble getting to work at my scheduled starting time because of medical
treatments I'm undergoing." This is a request for a reasonable accommodation.
Example B: An employee tells his supervisor, "I
need six weeks off to get treatment for a back problem." This is a request for a
reasonable accommodation.
Example C: A new employee, who uses a wheelchair,
informs the employer that her wheelchair cannot fit under the desk in her office. This is
a request for reasonable accommodation.
Example D: An employee tells his supervisor that he
would like a new chair because his present one is uncomfortable. Although this is a
request for a change at work, his statement is insufficient to put the employer on notice
that he is requesting reasonable accommodation. He does not link his need for the new
chair with a medical condition.
While an individual with a disability may request a change
due to a medical condition, this request does not necessarily mean that the
employer is required to provide the change. A request for reasonable
accommodation is the first step in an informal, interactive process between the
individual and the employer. In some instances, before addressing the merits of the
accommodation request, the employer needs to determine if the individual's medical
condition meets the ADA definition of "disability,"(18)
a prerequisite for the individual to be entitled to a reasonable accommodation.
- May someone other than the individual with a
disability request a reasonable accommodation on behalf of the individual?
Yes, a family member, friend, health professional, or other
representative may request a reasonable accommodation on behalf of an individual with a
disability.(19) Of course, the individual with a
disability may refuse to accept an accommodation that is not needed.
Example A: An employee's spouse phones the
employee's supervisor on Monday morning to inform her that the employee had a medical
emergency due to multiple sclerosis, needed to be hospitalized, and thus requires time
off. This discussion constitutes a request for reasonable accommodation.
Example B: An employee has been out of work for six
months with a workers' compensation injury. The employee's doctor sends the employer a
letter, stating that the employee is released to return to work, but with certain work
restrictions. (Alternatively, the letter may state that the employee is released to return
to a light duty position.) The letter constitutes a request for reasonable accommodation.
- Do requests for reasonable accommodation need to be in
writing?
No. Requests for reasonable
accommodation do not need to be in writing. Individuals may request accommodations in
conversation or may use any other mode of communication.(20)
An employer may choose to write a memorandum or letter confirming the individual's
request. Alternatively, an employer may ask the individual to fill out a form or submit
the request in written form, but the employer cannot ignore the initial request. An
employer also may request reasonable documentation that the individual has an ADA
disability and needs a reasonable accommodation. (See Question 6).
- When should an individual with a disability request
a reasonable accommodation?
An individual
with a disability may request a reasonable accommodation at any time during the
application process or during the period of employment. The ADA does not preclude an
employee with a disability from requesting a reasonable accommodation because s/he did not
ask for one when applying for a job or after receiving a job offer. Rather, an individual
with a disability should request a reasonable accommodation when s/he knows that there is
a workplace barrier that is preventing him/her, due to a disability, from effectively
competing for a position, performing a job, or gaining equal access to a benefit of
employment.(21) As a practical matter, it may be in an
employee's interest to request a reasonable accommodation before performance suffers or
conduct problems occur.
- What must an employer do after receiving
a request for reasonable accommodation?
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.(22) The employer may ask the individual
relevant questions that will enable it to make an informed decision about the request.
This includes asking what type of reasonable accommodation is needed.
The exact nature of the dialogue will vary. In many
instances, both the disability and the type of accommodation required will be obvious, and
thus there may be little or no need to engage in any discussion. In other situations, the
employer may need to ask questions concerning the nature of the disability and the
individual's functional limitations in order to identify an effective accommodation. While
the individual with a disability does not have to be able to specify the precise
accommodation, s/he does need to describe the problems posed by the workplace barrier.
Additionally, suggestions from the individual with a disability may assist the employer in
determining the type of reasonable accommodation to provide. Where the individual or the
employer are not familiar with possible accommodations, there are extensive public and
private resources to help the employer identify reasonable accommodations once the
specific limitations and workplace barriers have been ascertained.(23)
- May an employer ask an individual for documentation
when the individual requests reasonable accommodation?
Yes. 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.(24) The
employer is entitled to know that the individual has a covered disability for which s/he
needs a reasonable accommodation.
Reasonable documentation means that the
employer may require only the documentation that is needed to establish that a person has
an ADA disability, and that the disability necessitates a reasonable accommodation. Thus,
an employer, in response to a request for reasonable accommodation, cannot ask for
documentation that is unrelated to determining the existence of a disability and the
necessity for an accommodation. This means that in most situations an employer cannot
request a person's complete medical records because they are likely to contain information
unrelated to the disability at issue and the need for accommodation. If an individual has
more than one disability, an employer can request information pertaining only to the
disability that requires a reasonable accommodation.
An employer may require that the documentation about the
disability and the functional limitations come from an appropriate health care or
rehabilitation professional. The appropriate professional in any particular situation will
depend on the disability and the type of functional limitation it imposes. Appropriate
professionals include, but are not limited to, doctors (including psychiatrists),
psychologists, nurses, physical therapists, occupational therapists, speech therapists,
vocational rehabilitation specialists, and licensed mental health professionals.
In requesting documentation, employers should specify what
types of information they are seeking regarding the disability, its functional
limitations, and the need for reasonable accommodation. The individual can be asked to
sign a limited release allowing the employer to submit a list of specific questions to the
health care or vocational professional.(25)
As an alternative to requesting documentation, an employer
may simply discuss with the person the nature of his/her disability and functional
limitations. It would be useful for the employer to make clear to the individual why it is
requesting information, i.e., to verify the existence of an ADA disability and the
need for a reasonable accommodation.
Example A: An employee says to an employer,
"I'm having trouble reaching tools because of my shoulder injury." The employer
may ask the employee for documentation describing the impairment; the nature, severity,
and duration of the impairment; the activity or activities that the impairment limits; and
the extent to which the impairment limits the employee's ability to perform the activity
or activities (i.e., the employer is seeking information as to whether the employee
has an ADA disability).
Example B: A marketing employee has a severe
learning disability. He attends numerous meetings to plan marketing strategies. In order
to remember what is discussed at these meetings he must take detailed notes but, due to
his disability, he has great difficulty writing. The employee tells his supervisor about
his disability and requests a laptop computer to use in the meetings. Since neither the
disability nor the need for accommodation are obvious, the supervisor may ask the employee
for reasonable documentation about his impairment; the nature, severity, and duration of
the impairment; the activity or activities that the impairment limits; and the extent to
which the impairment limits the employee's ability to perform the activity or activities.
The employer also may ask why the disability necessitates use of a laptop computer (or any
other type of reasonable accommodation, such as a tape recorder) to help the employee
retain the information from the meetings.(26)
Example C: An employee's spouse phones the
employee's supervisor on Monday morning to inform her that the employee had a medical
emergency due to multiple sclerosis, needed to be hospitalized, and thus requires time
off. The supervisor can ask the spouse to send in documentation from the employee's
treating physician that confirms that the hospitalization was related to the multiple
sclerosis and provides information on how long an absence may be required from work.(27)
If an individual's disability or need for reasonable
accommodation is not obvious, and s/he refuses to provide the reasonable documentation
requested by the employer, then s/he is not entitled to reasonable accommodation.(28) On the other hand, failure by the employer to initiate
or participate in an informal dialogue with the individual after receiving a request for
reasonable accommodation could result in liability for failure to provide a reasonable
accommodation.(29)
- May an employer require an individual to go to a health care
professional of the employer's (rather than the employee's) choice for
purposes of documenting need for accommodation and disability?
The ADA does not prevent an employer from requiring an individual to
go to an appropriate health professional of the employer's choice if the individual
provides insufficient information from his/her treating physician (or other health care
professional) to substantiate that s/he has an ADA disability and needs a reasonable
accommodation. However, if an individual provides insufficient documentation in response
to the employer's initial request, the employer should explain why the documentation is
insufficient and allow the individual an opportunity to provide the missing information in
a timely manner. Documentation is insufficient if it does not specify the existence of an ADA
disability and explain the need for reasonable accommodation.(30)
Any medical examination conducted by the employer's health
professional must be job-related and consistent with business necessity. This means that
the examination must be limited to determining the existence of an ADA disability and the
functional limitations that require reasonable accommodation.(31)
If an employer requires an employee to go to a health professional of the employer's
choice, the employer must pay all costs associated with the visit(s).
- Are there situations in which an employer cannot ask
for documentation in response to a request for reasonable accommodation?
Yes. An employer cannot ask for documentation when: (1) both the
disability and the need for reasonable accommodation are obvious, or (2) the individual
has already provided the employer with sufficient information to substantiate that s/he
has an ADA disability and needs the reasonable accommodation requested.
Example A: An employee brings a note from her
treating physician explaining that she has diabetes and that, as a result, she must test
her blood sugar several times a day to ensure that her insulin level is safe in order to
avoid a hyperglycemic reaction. The note explains that a hyperglycemic reaction can
include extreme thirst, heavy breathing, drowsiness, and flushed skin, and eventually
would result in unconsciousness. Depending on the results of the blood test, the employee
might have to take insulin. The note requests that the employee be allowed three or four
10-minute breaks each day to test her blood, and if necessary, to take insulin. The
doctor's note constitutes sufficient documentation that the person has an ADA disability
because it describes a substantially limiting impairment and the reasonable accommodation
needed as a result. The employer cannot ask for additional documentation.
Example B: One year ago, an employer learned that an
employee had bipolar disorder after he requested a reasonable accommodation. The
documentation provided at that time from the employee's psychiatrist indicated that this
was a permanent condition which would always involve periods in which the disability would
remit and then intensify. The psychiatrist's letter explained that during periods when the
condition flared up, the person's manic moods or depressive episodes could be severe
enough to create serious problems for the individual in caring for himself or working, and
that medication controlled the frequency and severity of these episodes.
Now, one year later, the employee again requests a
reasonable accommodation related to his bipolar disorder. Under these facts, the employer
may ask for reasonable documentation on the need for the accommodation (if the need is not
obvious), but it cannot ask for documentation that the person has an ADA disability. The
medical information provided one year ago established the existence of a long-term
impairment that substantially limits a major life activity.
Example C: An employee gives her employer a letter
from her doctor, stating that the employee has asthma and needs the employer to provide
her with an air filter. This letter contains insufficient information as to whether the
asthma is an ADA disability because it does not provide any information as to its severity
(i.e., whether it substantially limits a major life activity). Furthermore, the
letter does not identify precisely what problem exists in the workplace that requires an
air filter or any other reasonable accommodation. Therefore, the employer can request
additional documentation.
- Is an employer required to provide the
reasonable accommodation that the individual wants?
The employer may choose among reasonable accommodations as long as
the chosen accommodation is effective.(32) Thus, as part
of the interactive process, the employer may offer alternative suggestions for reasonable
accommodations and discuss their effectiveness in removing the workplace barrier that is
impeding the individual with a disability.
If there are two possible reasonable accommodations, and
one costs more or is more burdensome than the other, the employer may choose the less
expensive or burdensome accommodation as long as it is effective (i.e., it would
remove a workplace barrier, thereby providing the individual with an equal opportunity to
apply for a position, to perform the essential functions of a position, or to gain equal
access to a benefit or privilege of employment). Similarly, when there are two or more
effective accommodations, the employer may choose the one that is easier to provide. In
either situation, the employer does not have to show that it is an undue hardship to
provide the more expensive or more difficult accommodation. If more than one accommodation
is effective, "the preference of the individual with a disability should be given
primary consideration. However, the employer providing the accommodation has the ultimate
discretion to choose between effective accommodations."(33)
Example A: An employee with a severe learning
disability has great difficulty reading. His supervisor sends him many detailed memoranda
which he often has trouble understanding. However, he has no difficulty understanding oral
communication. The employee requests that the employer install a computer with speech
output and that his supervisor send all memoranda through electronic mail which the
computer can then read to him. The supervisor asks whether a tape recorded message would
accomplish the same objective and the employee agrees that it would. Since both
accommodations are effective, the employer may choose to provide the supervisor and
employee with a tape recorder so that the supervisor can record her memoranda and the
employee can listen to them.
Example B: An attorney with a severe vision
disability requests that her employer provide someone to read printed materials that she
needs to review daily. The attorney explains that a reader enables her to review
substantial amounts of written materials in an efficient manner. Believing that this
reasonable accommodation would be too costly, the employer instead provides the attorney
with a device that allows her to magnify print so that she can read it herself. The
attorney can read print using this device, but with such great difficulty it significantly
slows down her ability to review written materials. The magnifying device is ineffective
as a reasonable accommodation because it does not provide the attorney with an equal
opportunity to attain the same level of performance as her colleagues. Without an equal
opportunity to attain the same level of performance, this attorney is denied an equal
opportunity to compete for promotions. In this instance, failure to provide the reader,
absent undue hardship, would violate the ADA.
- How quickly must an employer respond
to a request for reasonable accommodation?
An
employer should respond expeditiously 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.(34)
Similarly, the employer should act promptly to provide the reasonable accommodation.
Unnecessary delays can result in a violation of the ADA.(35)
Example A: An employer provides parking for all
employees. An employee who uses a wheelchair requests from his supervisor an accessible
parking space, explaining that the spaces are so narrow that there is insufficient room
for his van to extend the ramp that allows him to get in and out. The supervisor does not
act on the request and does not forward it to someone with authority to respond. The
employee makes a second request to the supervisor. Yet, two months after the initial
request, nothing has been done. Although the supervisor never definitively denies the
request, the lack of action under these circumstances amounts to a denial, and thus
violates the ADA.
Example B: An employee who is blind requests
adaptive equipment for her computer as a reasonable accommodation. The employer must order
this equipment and is informed that it will take three months to receive delivery. No
other company sells the adaptive equipment the employee needs. The employer notifies the
employee of the results of its investigation and that it has ordered the equipment.
Although it will take three months to receive the equipment, the employer has moved as
quickly as it can to obtain it and thus there is no ADA violation resulting from the
delay. The employer and employee should determine what can be done so that the employee
can perform his/her job as effectively as possible while waiting for the equipment.
- May an employer require an individual with a
disability to accept a reasonable accommodation that s/he does not want?
No. An employer may not require a qualified individual with a
disability to accept an accommodation. If, however, an employee needs a reasonable
accommodation to perform an essential function or to eliminate a direct threat, and
refuses to accept an effective accommodation, s/he may not be qualified to remain in the
job.(36)
- May an employer ask whether a
reasonable accommodation is needed when an applicant has not asked for one?
An employer may tell applicants what the hiring
process involves (e.g., an interview, timed written test, or job demonstration),
and may ask applicants whether they will need a reasonable accommodation for this process.
During the hiring process and before a conditional
offer is made, an employer generally may not ask an applicant whether s/he needs
a reasonable accommodation for the job, except when the employer knows that an applicant
has a disability -- either because it is obvious or the applicant has voluntarily
disclosed the information -- and could reasonably believe that the applicant will need
a reasonable accommodation to perform specific job functions. If the applicant
replies that s/he needs a reasonable accommodation, the employer may inquire as to what
type.(37)
After a conditional offer of employment is
extended, an employer may inquire whether applicants will need reasonable
accommodations related to anything connected with the job (i.e., job
performance or access to benefits/privileges of the job) as long as all entering employees
in the same job category are asked this question. Alternatively, an employer may ask a
specific applicant if s/he needs a reasonable accommodation if the employer knows that
this applicant has a disability -- either because it is obvious or the applicant has
voluntarily disclosed the information -- and could reasonably believe that the applicant
will need a reasonable accommodation. If the applicant replies that s/he needs a
reasonable accommodation, the employer may inquire as to what type.(38)
- Does an employer have to provide a reasonable accommodation
to an applicant with a disability even if it believes that it will be unable to
provide this individual with a reasonable accommodation on the job?
Yes. An employer must provide a reasonable accommodation to a qualified
applicant with a disability that will enable the individual to have an equal
opportunity to participate in the application process and to be considered for a job
(unless it can show undue hardship). Thus, individuals with disabilities who meet initial
requirements to be considered for a job should not be excluded from the application
process because the employer speculates, based on a request for reasonable accommodation
for the application process, that it will be unable to provide the individual with
reasonable accommodation to perform the job. In many instances, employers will be unable
to determine whether an individual needs reasonable accommodation to perform a job based
solely on a request for accommodation during the application process. And even if an
individual will need reasonable accommodation to perform the job, it may not be the same
type or degree of accommodation that is needed for the application process. Thus, an
employer should assess the need for accommodations for the application process separately
from those that may be needed to perform the job.(39)
Example A: An employer is impressed with an
applicant's resume and contacts the individual to come in for an interview. The applicant,
who is deaf, requests a sign language interpreter for the interview. The employer cancels
the interview and refuses to consider further this applicant because it believes it would
have to hire a full-time interpreter. The employer has violated the ADA. The employer
should have proceeded with the interview, using a sign language interpreter (absent undue
hardship), and at the interview inquired to what extent the individual would need a sign
language interpreter to perform any essential functions requiring communication with other
people.
Example B: An individual who has paraplegia applies
for a secretarial position. Because the office has two steps at the entrance, the employer
arranges for the applicant to take a typing test, a requirement of the application
process, at a different location. The applicant fails the test. The employer does not have
to provide any further reasonable accommodations for this individual because she is no
longer qualified to continue with the application process.
The ADA requires employers to provide
reasonable accommodations so that employees with disabilities can enjoy the "benefits
and privileges of employment" equal to those enjoyed by similarly-situated
employees without disabilities. Benefits and privileges of employment include, but are not
limited to, employer-sponsored: (1) training, (2) services (e.g., employee
assistance programs (EAP's), credit unions, cafeterias, lounges, gymnasiums, auditoriums,
transportation), and (3) parties or other social functions (e.g., parties to
celebrate retirements and birthdays, and company outings).(41)
If an employee with a disability needs a reasonable accommodation in order to gain access
to, and have an equal opportunity to participate in, these benefits and privileges, then
the employer must provide the accommodation unless it can show undue hardship.
- Does an employer have to provide reasonable accommodation to
enable an employee with a disability to have equal access to information communicated in
the workplace to non-disabled employees?
Yes.
Employers provide information to employees through different means, including computers,
bulletin boards, mailboxes, posters, and public address systems. Employers must ensure
that employees with disabilities have access to information that is provided to other
similarly-situated employees without disabilities, regardless of whether they need it to
perform their jobs.
Example A: An employee who is blind has adaptive
equipment for his computer that integrates him into the network with other employees, thus
allowing communication via electronic mail and access to the computer bulletin board. When
the employer installs upgraded computer equipment, it must provide new adaptive equipment
in order for the employee to be integrated into the new networks, absent undue hardship.
Alternative methods of communication (e.g., sending written or telephone messages
to the employee instead of electronic mail) are likely to be ineffective substitutes since
electronic mail is used by every employee and there is no effective way to ensure that
each one will always use alternative measures to ensure that the blind employee receives
the same information that is being transmitted via computer.
Example B: An employer authorizes the Human
Resources Director to use a public address system to remind employees about special
meetings and to make certain announcements. In order to make this information accessible
to a deaf employee, the Human Resources Director arranges to send in advance an electronic
mail message to the deaf employee conveying the information that will be broadcast. The
Human Resources Director is the only person who uses the public address system; therefore,
the employer can ensure that all public address messages are sent, via electronic mail, to
the deaf employee. Thus, the employer is providing this employee with equal access to
office communications.
- Must an employer provide reasonable accommodation so that an
employee may attend training programs?
Yes.
Employers must provide reasonable accommodation (e.g., sign language interpreters;
written materials produced in alternative formats, such as braille, large print, or on
audio-cassette) that will provide employees with disabilities with an equal opportunity to
participate in employer-sponsored training, absent undue hardship. This obligation extends
to in-house training, as well as to training provided by an outside entity. Similarly, the
employer has an obligation to provide reasonable accommodation whether the training occurs
on the employer's premises or elsewhere.
Example A: XYZ Corp. has signed a contract with
Super Trainers, Inc., to provide mediation training at its facility to all of XYZ's Human
Resources staff. One staff member is blind and requests that materials be provided in
braille. Super Trainers refuses to provide the materials in braille. XYZ maintains that it
is the responsibility of Super Trainers and sees no reason why it should have to arrange
and pay for the braille copy.
Both XYZ (as an employer covered under Title I of the ADA)
and Super Trainers (as a public accommodation covered under Title III of the ADA(42)) have obligations to provide materials in alternative
formats. This fact, however, does not excuse either one from their respective obligations.
If Super Trainers refuses to provide the braille version, despite its Title III
obligations, XYZ still retains its obligation to provide it as a reasonable accommodation,
absent undue hardship.
Employers arranging with an outside entity to provide
training may wish to avoid such problems by specifying in the contract who has the
responsibility to provide appropriate reasonable accommodations. Similarly, employers
should ensure that any offsite training will be held in an accessible facility if they
have an employee who, because of a disability, requires such an accommodation.
Example B: XYZ Corp. arranges for one of its
employees to provide CPR training. This three-hour program is optional. A deaf employee
wishes to take the training and requests a sign language interpreter. XYZ must provide the
interpreter because the CPR training is a benefit that XYZ offers all employees, even
though it is optional.
Below are discussed certain types of reasonable
accommodations related to job performance.
Job restructuring includes modifications such as:
- reallocating or redistributing marginal job functions that
an employee is unable to perform because of a disability; and
- altering when and/or how a function, essential or marginal,
is performed.(44)
An employer never has to reallocate essential functions as
a reasonable accommodation, but can do so if it wishes.
- If, as a reasonable accommodation, an employer restructures
an employee's job to eliminate some marginal functions, may the employer require
the employee to take on other marginal functions that s/he can perform?
Yes. An employer may switch the marginal functions of two (or more)
employees in order to restructure a job as a reasonable accommodation.
Example: A cleaning crew works in an office
building. One member of the crew wears a prosthetic leg which enables him to walk very
well, but climbing steps is painful and difficult. Although he can perform his essential
functions without problems, he cannot perform the marginal function of sweeping the steps
located throughout the building. The marginal functions of a second crew member include
cleaning the small kitchen in the employee's lounge, which is something the first crew
member can perform. The employer can switch the marginal functions performed by these two
employees.
Permitting the use of accrued paid leave, or unpaid leave,
is a form of reasonable accommodation when necessitated by an employee's disability.(45) An employer does not have to provide paid leave
beyond that which is provided to similarly-situated employees. Employers should
allow an employee with a disability to exhaust accrued paid leave first and then provide
unpaid leave.(46) For example, if employees get 10 days of
paid leave, and an employee with a disability needs 15 days of leave, the employer should
allow the individual to use 10 days of paid leave and 5 days of unpaid leave.
An employee with a disability may need leave for a number
of reasons related to the disability, including, but not limited to:
- obtaining medical treatment (e.g., surgery,
psychotherapy, substance abuse treatment, or dialysis); rehabilitation services; or
physical or occupational therapy;
- recuperating from an illness or an episodic manifestation of
the disability;
- obtaining repairs on a wheelchair, accessible van, or
prosthetic device;
- avoiding temporary adverse conditions in the work
environment (for example, an air-conditioning breakdown causing unusually warm
temperatures that could seriously harm an employee with multiple sclerosis);
- training a service animal (e.g., a guide dog); or
- receiving training in the use of braille or to learn sign
language.
- 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 leave beyond the set period?
No. If an
employee with a disability needs additional unpaid leave as a reasonable accommodation,
the employer must modify its "no-fault" leave policy to provide the employee
with the additional leave, unless it can show that: (1) there is another effective
accommodation that would enable the person to perform the essential functions of his/her
position, or (2) granting additional leave would cause an undue hardship. Modifying
workplace policies, including leave policies, is a form of reasonable accommodation.(47)
- Does an employer have to hold open an employee's job
as a reasonable accommodation?
Yes. An employee with
a disability who is granted leave as a reasonable accommodation is entitled to return to
his/her same position unless the employer demonstrates that holding open the position
would impose an undue hardship.(48)
If an employer cannot hold a position open during the
entire leave period without incurring undue hardship, the employer must consider whether
it has a vacant, equivalent position for which the employee is qualified and to which the
employee can be reassigned to continue his/her leave for a specific period of time and
then, at the conclusion of the leave, can be returned to this new position.(49)
Example: An employee needs eight months of leave for
treatment and recuperation related to a disability. The employer grants the request, but
after four months the employer determines that it can no longer hold open the position for
the remaining four months without incurring undue hardship. The employer must consider
whether it has a vacant, equivalent position to which the employee can be reassigned for
the remaining four months of leave, at the end of which time the employee would return to
work in that new position. If an equivalent position is not available, the employer must
look for a vacant position at a lower level. Continued leave is not required as a
reasonable accommodation if a vacant position at a lower level is also unavailable.
- Can an employer penalize an employee for work missed
during leave taken as a reasonable accommodation?
No. To do so would be retaliation for the employee's use of a reasonable
accommodation to which s/he is entitled under the law.(50)
Moreover, such punishment would make the leave an ineffective accommodation, thus making
an employer liable for failing to provide a reasonable accommodation.(51)
Example A: A salesperson took five months of leave
as a reasonable accommodation. The company compares the sales records of all salespeople
over a one-year period, and any employee whose sales fall more than 25% below the median
sales performance of all employees is automatically terminated. The employer terminates
the salesperson because she had fallen below the required performance standard. The
company did not consider that the reason for her lower sales performance was her
five-month leave of absence; nor did it assess her productivity during the period she did
work (i.e., prorate her productivity).
Penalizing the salesperson in this manner constitutes
retaliation and a denial of reasonable accommodation.
Example B: Company X is having a reduction-in-force.
The company decides that any employee who has missed more than four weeks in the past year
will be terminated. An employee took five weeks of leave for treatment of his disability.
The company cannot count those five weeks in determining whether to terminate this
employee.(52)
- 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 reasonable accommodation would be effective and eliminate the need for leave.(53) An employer need not provide an employee's preferred
accommodation as long as the employer provides an effective accommodation.(54)
Accordingly, in lieu of providing leave, an employer may provide a reasonable
accommodation that requires an employee to remain on the job (e.g., reallocation of
marginal functions or temporary transfer) as long as it does not interfere with the
employee's ability to address his/her medical needs. The employer is obligated, however,
to restore the employee's full duties or to return the employee to his/her original
position once s/he no longer needs the reasonable accommodation.
Example A: An employee with emphysema requests ten
weeks of leave for surgery and recuperation related to his disability. In discussing this
request with the employer, the employee states that he could return to work after seven
weeks if, during his first three weeks back, he could work part-time and eliminate two
marginal functions that require lots of walking. If the employer provides these
accommodations, then it can require the employee to return to work after seven weeks.
Example B: An employee's disability is getting more
severe and her doctor recommends surgery to counteract some of the effects. After
receiving the employee's request for leave for the surgery, the employer proposes that it
provide certain equipment which it believes will mitigate the effects of the disability
and delay the need for leave to get surgery. The employer's proposed accommodation is not
effective because it interferes with the employee's ability to get medical treatment.
- How should an employer handle leave for an
employee covered by both the ADA and the Family and Medical Leave Act (FMLA)?(55)
An employer should
determine an employee's rights under each statute separately, and then consider whether
the two statutes overlap regarding the appropriate actions to take.(56)
Under the ADA, an employee who needs leave
related to his/her disability is entitled to such leave if there is no other effective
accommodation and the leave will not cause undue hardship. An employer must allow the
individual to use any accrued paid leave first, but, if that is insufficient to cover the
entire period, then the employer should grant unpaid leave. An employer must continue an
employee's health insurance benefits during his/her leave period only if it does so for
other employees in a similar leave status. As for the employee's position, the ADA
requires that the employer hold it open while the employee is on leave unless it can show
that doing so causes undue hardship. When the employee is ready to return to work, the
employer must allow the individual to return to the same position (assuming that there was
no undue hardship in holding it open) if the employee is still qualified (i.e., the
employee can perform the essential functions of the position with or without reasonable
accommodation).
If it is an undue hardship under the ADA to hold open an
employee's position during a period of leave, or an employee is no longer qualified to
return to his/her original position, then the employer must reassign the employee (absent
undue hardship) to a vacant position for which s/he is qualified.
Under the FMLA, an eligible employee is
entitled to a maximum of 12 weeks of leave per 12 month period. The FMLA guarantees the
right of the employee to return to the same position or to an equivalent one.(57) An employer must allow the individual to use any accrued
paid leave first, but if that is insufficient to cover the entire period, then the
employer should grant unpaid leave. The FMLA requires an employer to continue the
employee's health insurance coverage during the leave period, provided the employee pays
his/her share of the premiums.
Example A: An employee with an ADA disability needs
13 weeks of leave for treatment related to the disability. The employee is eligible under
the FMLA for 12 weeks of leave (the maximum available), so this period of leave
constitutes both FMLA leave and a reasonable accommodation. Under the FMLA, the employer
could deny the employee the thirteenth week of leave. But, because the employee is also
covered under the ADA, the employer cannot deny the request for the thirteenth week of
leave unless it can show undue hardship. The employer may consider the impact on its
operations caused by the initial 12-week absence, along with other undue hardship factors.(58)
Example B: An employee with an ADA disability has
taken 10 weeks of FMLA leave and is preparing to return to work. The employer wants to put
her in an equivalent position rather than her original one. Although this is permissible
under the FMLA, the ADA requires that the employer return the employee to her original
position. Unless the employer can show that this would cause an undue hardship, or that
the employee is no longer qualified for her original position (with or without reasonable
accommodation), the employer must reinstate the employee to her original position.
Example C: An employee with an ADA disability has
taken 12 weeks of FMLA leave. He notifies his employer that he is ready to return to work,
but he no longer is able to perform the essential functions of his position or an
equivalent position. Under the FMLA, the employer could terminate his employment,(59) but under the ADA the employer must consider whether the
employee could perform the essential functions with reasonable accommodation (e.g.,
additional leave, part-time schedule, job restructuring, or use of specialized equipment).
If not, the ADA requires the employer to reassign the employee if there is a vacant
position available for which he is qualified, with or without reasonable accommodation,
and there is no undue hardship.
- Must an employer allow an employee with a disability
to work a modified or part-time schedule as a reasonable accommodation, absent
undue hardship?
Yes.(60)
A modified schedule may involve adjusting arrival or departure times, providing periodic
breaks, altering when certain functions are performed, allowing an employee to use accrued
paid leave, or providing additional unpaid leave. An employer must provide a modified or
part-time schedule when required as a reasonable accommodation, absent undue hardship,
even if it does not provide such schedules for other employees.
Example A: An employee with HIV infection must take
medication on a strict schedule. The medication causes extreme nausea about one hour after
ingestion, and generally lasts about 45 minutes. The employee asks that he be allowed to
take a daily 45-minute break when the nausea occurs. The employer must grant this request
absent undue hardship.
For certain positions, the time during which an
essential function is performed may be critical. This could affect whether an
employer can grant a request to modify an employee's schedule.(61)
Employers should carefully assess whether modifying the hours could significantly
disrupt their operations -- that is, cause undue hardship -- or whether the
essential functions may be performed at different times with little or no impact
on the operations or the ability of other employees to perform their jobs.
If modifying an employee's schedule poses an undue
hardship, an employer must consider reassignment to a vacant position that would enable
the employee to work during the hours requested.(62)
Example B: A day care worker requests that she be
allowed to change her hours from 7:00 a.m. - 3:00 p.m. to 10:00 a.m. - 6:00 p.m. because
of her disability. The day care center is open from 7:00 a.m. - 7:00 p.m. and it will
still have sufficient coverage at the beginning of the morning if it grants the change in
hours. In this situation, the employer must provide the reasonable accommodation.
Example C: An employee works for a morning
newspaper, operating the printing presses which run between 10 p.m. and 3 a.m. Due to her
disability, she needs to work in the daytime. The essential function of her position,
operating the printing presses, requires that she work at night because the newspaper
cannot be printed during the daytime hours. Since the employer cannot modify her hours, it
must consider whether it can reassign her to a different position.
- How should an employer handle requests for modified or
part-time schedules for an employee covered by both the ADA and the Family and
Medical Leave Act (FMLA)?(63)
An employer should determine an employee's rights under each statute
separately, and then consider whether the two statutes overlap regarding the appropriate
actions to take.
Under the ADA, an employee who needs a
modified or part-time schedule because of his/her disability is entitled to such a
schedule if there is no other effective accommodation and it will not cause undue
hardship. If there is undue hardship, the employer must reassign the employee if there is
a vacant position for which s/he is qualified and which would allow the employer to grant
the modified or part-time schedule (absent undue hardship).(64)
An employee receiving a part-time schedule as a reasonable accommodation is entitled only
to the benefits, including health insurance, that other part-time employees receive. Thus,
if non-disabled part-time workers are not provided with health insurance, then the
employer does not have to provide such coverage to an employee with a disability who is
given a part-time schedule as a reasonable accommodation.
Under the FMLA, an eligible employee is
entitled to take leave intermittently or on a part-time basis, when medically necessary,
until s/he has used up the equivalent of 12 workweeks in a 12-month period. When such
leave is foreseeable based on planned medical treatment, an employer may require the
employee to temporarily transfer (for the duration of the leave) to an available
alternative position, with equivalent pay and benefits, for which the employee is
qualified and which better suits his/her reduced hours.(65)
An employer always must maintain the employee's existing level of coverage under a group
health plan during the period of FMLA leave, provided the employee pays his/her share of
the premium.(66)
Example: An employee with an ADA disability requests
that she be excused from work one day a week for the next six months because of her
disability. If this employee is eligible for a modified schedule under the FMLA, the
employer must provide the requested leave under that statute if it is medically necessary,
even if the leave would be an undue hardship under the ADA.
- Is it a reasonable accommodation to modify a
workplace policy?
Yes. It is a reasonable
accommodation to modify a workplace policy when necessitated by an individual's
disability-related limitations,(67) absent undue hardship.
But, reasonable accommodation only requires that the employer modify the policy for an
employee who requires such action because of a disability; therefore, the employer may
continue to apply the policy to all other employees.
Example: An employer has a policy prohibiting
employees from eating or drinking at their workstations. An employee with
insulin-dependent diabetes explains to her employer that she may occasionally take too
much insulin and, in order to avoid going into insulin shock, she must immediately eat a
candy bar or drink fruit juice. The employee requests permission to keep such food at her
workstation and to eat or drink when her insulin level necessitates. The employer must
modify its policy to grant this request, absent undue hardship. Similarly, an employer
might have to modify a policy to allow an employee with a disability to bring in a small
refrigerator, or to use the employer's refrigerator, to store medication that must be
taken during working hours.
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. For example, it would be a reasonable accommodation to modify a
policy requiring employees to schedule vacation time in advance if an otherwise qualified
individual with a disability needed to use accrued vacation time on an unscheduled basis
because of disability-related medical problems, barring undue hardship.(68)
Furthermore, an employer may be required to provide additional leave to an employee with a
disability as a reasonable accommodation in spite of a "no-fault" leave policy,
unless the provision of such leave would impose an undue hardship.(69)
In some instances, an employer's refusal to modify a
workplace policy, such as a leave or attendance policy, could constitute disparate
treatment as well as a failure to provide a reasonable accommodation. For example, an
employer may have a policy requiring employees to notify supervisors before 9:00 a.m. if
they are unable to report to work. If an employer would excuse an employee from complying
with this policy because of emergency hospitalization due to a car accident, then the
employer must do the same thing when the emergency hospitalization is due to a disability.(70)
The ADA specifically lists "reassignment to a vacant
position" as a form of reasonable accommodation.(72)
This type of reasonable accommodation must be provided to an employee who, because of a
disability, can no longer perform the essential functions of his/her current position,
with or without reasonable accommodation, unless the employer can show that it would be an
undue hardship.(73)
An employee must be
"qualified" for the new position. An employee is
"qualified" for a position if s/he: (1) satisfies the requisite skill,
experience, education, and other job-related requirements of the position, and (2) can
perform the essential functions of the new position, with or without reasonable
accommodation.(74) The employee does not need to be the
best qualified individual for the position in order to obtain it as a reassignment.
There is no obligation for the employer to assist the
individual to become qualified. Thus, the employer does not have to provide training so
that the employee acquires necessary skills to take a job.(75)
The employer, however, would have to provide an employee with a disability who is being
reassigned with any training that is normally provided to anyone hired for or transferred
to the position.
Example A: An employer is considering reassigning an
employee with a disability to a position which requires the ability to speak Spanish in
order to perform an essential function. The employee never learned Spanish and wants the
employer to send him to a course to learn Spanish. The employer is not required to provide
this training as part of the obligation to make a reassignment. Therefore, the employee is
not qualified for this position.
Example B: An employer is considering reassigning an
employee with a disability to a position in which she will contract for goods and
services. The employee is qualified for the position. The employer has its own specialized
rules regarding contracting that necessitate training all individuals hired for these
positions. In this situation, the employer must provide the employee with this specialized
training.
Before considering reassignment as a reasonable
accommodation, employers should first consider those accommodations that would enable an
employee to remain in his/her current position. Reassignment is the reasonable
accommodation of last resort and is required only after it has been determined that: (1)
there are no effective accommodations that will enable the employee to perform the
essential functions of his/her current position, or (2) all other reasonable
accommodations would impose an undue hardship.(76)
However, if both the employer and the employee voluntarily agree that
transfer is preferable to remaining in the current position with some form of reasonable
accommodation, then the employer may transfer the employee.
"Vacant" means that the position is available
when the employee asks for reasonable accommodation, or that the employer knows that it
will become available within a reasonable amount of time. A "reasonable amount of
time" should be determined on a case-by-case basis considering relevant facts, such
as whether the employer, based on experience, can anticipate that an appropriate position
will become vacant within a short period of time.(77) A
position is considered vacant even if an employer has posted a notice or announcement
seeking applications for that position. The employer does not have to bump an employee
from a job in order to create a vacancy; nor does it have to create a new position.(78)
Example C: An employer is seeking a reassignment for
an employee with a disability. There are no vacant positions today, but the employer has
just learned that another employee resigned and that that position will become vacant in
four weeks. The impending vacancy is equivalent to the position currently held by the
employee with a disability. If the employee is qualified for that position, the employer
must offer it to him.
Example D: An employer is seeking a reassignment for
an employee with a disability. There are no vacant positions today, but the employer has
just learned that an employee in an equivalent position plans to retire in six months.
Although the employer knows that the employee with a disability is qualified for this
position, the employer does not have to offer this position to her because six months is
beyond a "reasonable amount of time." (If, six months from now, the employer
decides to advertise the position, it must allow the individual to apply for that position
and give the application the consideration it deserves.)
The employer must reassign the individual to a
vacant position that is equivalent in terms of pay, status, or other relevant factors
(e.g., benefits, geographical location) if the employee is qualified for the
position. If there is no vacant equivalent position, the employer must reassign the
employee to a vacant lower level position for which the individual is qualified. Assuming
there is more than one vacancy for which the employee is qualified, the employer must
place the individual in the position that comes closest to the employee's current position
in terms of pay, status, etc.(79) If it is unclear which
position comes closest, the employer should consult with the employee about his/her
preference before determining the position to which the employee will be reassigned. Reassignment
does not include giving an employee a promotion. Thus, an employee must compete for any
vacant position that would constitute a promotion.
- Is a probationary employee entitled to
reassignment?
Employers cannot deny a reassignment
to an employee solely because s/he is designated as "probationary."(80) An employee with a disability is eligible for
reassignment to a new position, regardless of whether s/he is considered
"probationary," as long as the employee adequately performed the essential
functions of the position, with or without reasonable accommodation, before the need for a
reassignment arose.
The longer the period of time in which an employee has
adequately performed the essential functions, with or without reasonable accommodation,
the more likely it is that reassignment is appropriate if the employee becomes unable to
continue performing the essential functions of the current position due to a disability.
If, however, the probationary employee has never adequately performed the
essential functions, with or without reasonable accommodation, then s/he is not entitled
to reassignment because s/he was never "qualified" for the original position. In
this situation, the employee is similar to an applicant who applies for a job for which
s/he is not qualified, and then requests reassignment. Applicants are not entitled to
reassignment.
Example A: An employer designates all new employees
as "probationary" for one year. An employee has been working successfully for
nine months when she becomes disabled in a car accident. The employee, due to her
disability, is unable to continue performing the essential functions of her current
position, with or without reasonable accommodation, and seeks a reassignment. She is
entitled to a reassignment if there is a vacant position for which she is qualified and it
would not pose an undue hardship.
Example B: A probationary employee has been working
two weeks, but has been unable to perform the essential functions of the job because of
his disability. There are no reasonable accommodations that would permit the individual to
perform the essential functions of the position, so the individual requests a
reassignment. The employer does not have to provide a reassignment (even if there is a
vacant position) because, as it turns out, the individual was never qualified -- i.e.,
the individual was never able to perform the essential functions of the position, with or
without reasonable accommodation, for which he was hired.
- Must an employer offer reassignment as a reasonable
accommodation if it does not allow any of its employees to transfer from
one position to another?
Yes. The ADA requires
employers to provide reasonable accommodations to individuals with disabilities, including
reassignment, even though they are not available to others. Therefore, an employer who
does not normally transfer employees would still have to reassign an employee with a
disability, unless it could show that the reassignment caused an undue hardship. And, if
an employer has a policy prohibiting transfers, it would have to modify that policy in
order to reassign an employee with a disability, unless it could show undue hardship.(81)
- Is an employer's obligation to offer reassignment to a
vacant position limited to those vacancies within an employee's office, branch,
agency, department, facility, personnel system (if the employer has more than a
single personnel system), or geographical area?
No. This is true even if the employer has a policy prohibiting
transfers from one office, branch, agency, department, facility, personnel system, or
geographical area to another. The ADA contains no language limiting the obligation to
reassign only to positions within an office, branch, agency, etc.(82)
Rather, the extent to which an employer must search for a vacant position will be an issue
of undue hardship.(83) If an employee is being reassigned
to a different geographical area, the employee must pay for any relocation expenses unless
the employer routinely pays such expenses when granting voluntary transfers to other
employees.
- Does an employer have to notify an employee with a
disability about vacant positions, or is it the employee's responsibility to
learn what jobs are vacant?
The employer is in the
best position to know which jobs are vacant or will become vacant within a reasonable
period of time.(84) In order to narrow the search for
potential vacancies, the employer, as part of the interactive process, should ask the
employee about his/her qualifications and interests. Based on this information, the
employer is obligated to inform an employee about vacant positions for which s/he may be
eligible as a reassignment. However, an employee should assist the employer in identifying
appropriate vacancies to the extent that the employee has access to information about
them. If the employer does not know whether the employee is qualified for a specific
position, the employer can discuss with the employee his/her qualifications.(85)
An employer should proceed as expeditiously as possible in
determining whether there are appropriate vacancies. The length of this process will vary
depending on how quickly an employer can search for and identify whether an appropriate
vacant position exists. For a very small employer, this process may take one day; for
other employers this process may take several weeks.(86)
When an employer has completed its search, identified whether there are any vacancies
(including any positions that will become vacant in a reasonable amount of time), notified
the employee of the results, and either offered an appropriate vacancy to the employee or
informed him/her that no appropriate vacancies are available, the employer will have
fulfilled its obligation.
- Does reassignment mean that the employee is
permitted to compete for a vacant position?
No.
Reassignment means that the employee gets the vacant position if s/he is qualified
for it. Otherwise, reassignment would be of little value and would not be
implemented as Congress intended.(87)
- If an employee is reassigned to a lower level position, must
an employer maintain his/her salary from the higher level position?
No, unless the employer transfers employees without disabilities to
lower level positions and maintains their original salaries.(88)
- If an employer has provided one reasonable accommodation,
does it have to provide additional reasonable accommodations requested by
an individual with a disability?
The duty to provide
reasonable accommodation is an ongoing one.(90) Certain
individuals require only one reasonable accommodation, while others may need more than
one. Still others may need one reasonable accommodation for a period of time, and then at
a later date, require another type of reasonable accommodation. If an individual requests
multiple reasonable accommodations, s/he is entitled only to those accommodations that are
necessitated by a disability and that will provide an equal employment opportunity.
An employer must consider each request for reasonable
accommodation and determine: (1) whether the accommodation is needed, (2) if needed,
whether the accommodation would be effective, and (3) if effective, whether providing the
reasonable accommodation would impose an undue hardship. If a reasonable accommodation
turns out to be ineffective and the employee with a disability remains unable to perform
an essential function, the employer must consider whether there would be an alternative
reasonable accommodation that would not pose an undue hardship. If there is no alternative
accommodation, then the employer must attempt to reassign the employee to a vacant
position for which s/he is qualified, unless to do so would cause an undue hardship.
- Does an employer have to change a
person's supervisor as a form of reasonable accommodation?
No. An employer does not have to provide an employee with a new
supervisor as a reasonable accommodation. Nothing in the ADA, however, prohibits an
employer from doing so. Furthermore, although an employer is not required to change
supervisors, the ADA may require that supervisory methods be altered as a form of
reasonable accommodation.(91) Also, an employee with a
disability is protected from disability-based discrimination by a supervisor, including
disability-based harassment.
Example: A supervisor frequently schedules team
meetings on a day's notice - often notifying staff in the afternoon that a meeting will be
held on the following morning. An employee with a disability has missed several meetings
because they have conflicted with previously-scheduled physical therapy sessions. The
employee asks that the supervisor give her two to three days' notice of team meetings so
that, if necessary, she can reschedule the physical therapy sessions. Assuming no undue
hardship would result, the supervisor must make this reasonable accommodation.
- Does an employer have to allow an employee with a disability
to work at home as a reasonable accommodation?
An employer must modify its policy concerning where work is
performed if such a change is needed as a reasonable accommodation, but only if
this accommodation would be effective and would not cause an undue hardship.(92) Whether this accommodation is effective will depend on
whether the essential functions of the position can be performed at home. There are
certain jobs in which the essential functions can only be performed at the work site -- e.g.,
food server, cashier in a store. For such jobs, allowing an employee to work at home is
not effective because it does not enable an employee to perform his/her essential
functions. Certain considerations may be critical in determining whether a job can be
effectively performed at home, including (but not limited to) the employer's ability to
adequately supervise the employee and the employee's need to work with certain equipment
or tools that cannot be replicated at home. In contrast, employees may be able to perform
the essential functions of certain types of jobs at home (e.g., telemarketer,
proofreader).(93) For these types of jobs, an employer may
deny a request to work at home if it can show that another accommodation would be
effective or if working at home will cause undue hardship.
- Must an employer withhold discipline or
termination of an employee who, because of a disability, violated a conduct rule
that is job-related for the position in question and consistent with business necessity?
No. 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.
- Must an employer provide a reasonable accommodation
for an employee with a disability who violated a conduct rule that is job-related for the
position in question and consistent with business necessity?
An employer must make reasonable accommodation to enable an
otherwise qualified employee with a disability to meet such a conduct standard in
the future, barring undue hardship, except where the punishment for the violation
is termination.(94) Since reasonable accommodation is
always prospective, an employer is not required to excuse past misconduct
even if it is the result of the individual's disability.(95)
Possible reasonable accommodations could include adjustments to starting times, specified
breaks, and leave if these accommodations will enable an employee to comply with conduct
rules.(96)
Example: An employee with major depression is often
late for work because of medication side-effects that make him extremely groggy in the
morning. His scheduled hours are 9:00 a.m. to 5:30 p.m., but he arrives at 9:00, 9:30,
10:00, or even 10:30 on any given day. His job responsibilities involve telephone contact
with the company's traveling sales representatives, who depend on him to answer urgent
marketing questions and expedite special orders. The employer disciplines him for
tardiness, stating that continued failure to arrive promptly during the next month will
result in termination of his employment. The individual then explains that he was late
because of a disability and needs to work on a later schedule. In this situation, the
employer may discipline the employee because he violated a conduct standard addressing
tardiness that is job-related for the position in question and consistent with business
necessity. The employer, however, must consider reasonable accommodation, barring undue
hardship, to enable this individual to meet this standard in the future. For example, if
this individual can serve the company's sales representatives by regularly working a
schedule of 10:00 a.m. to 6:30 p.m., a reasonable accommodation would be to modify his
schedule so that he is not required to report for work until 10:00 a.m.
- Is it a reasonable accommodation to make sure that
an employee takes medication as prescribed?
No.
Medication monitoring is not a reasonable accommodation. Employers have no obligation to
monitor medication because doing so does not remove a workplace barrier. Similarly, an
employer has no responsibility to monitor an employee's medical treatment or ensure that
s/he is receiving appropriate treatment because such treatment does not involve modifying
workplace barriers.(97)
It may be a form of reasonable accommodation, however, to
give an employee a break in order that s/he may take medication, or to grant leave so that
an employee may obtain treatment.
- Is an employer relieved of its obligation to provide
reasonable accommodation for an employee with a disability who fails to
take medication, to obtain medical treatment, or to use an assistive device (such
as a hearing aid)?
No. The ADA requires an employer
to provide reasonable accommodation to remove workplace barriers, regardless of what
effect medication, other medical treatment, or assistive devices may have on an employee's
ability to perform the job.(98)
However, if an employee with a disability, with or without
reasonable accommodation, cannot perform the essential functions of the position or poses
a direct threat in the absence of medication, treatment, or an assistive device, then s/he
is unqualified.
- Must an employer provide a reasonable accommodation that is
needed because of the side effects of medication or treatment related to the
disability, or because of symptoms or other medical conditions resulting from the
underlying disability?
Yes. The side effects caused
by the medication that an employee must take because of the disability are limitations
resulting from the disability. Reasonable accommodation extends to all limitations
resulting from a disability.
Example A: An employee with cancer undergoes
chemotherapy twice a week, which causes her to be quite ill afterwards. The employee
requests a modified schedule -- leave for the two days a week of chemotherapy. The
treatment will last six weeks. Unless it can show undue hardship, the employer must grant
this request.
Similarly, any symptoms or related medical conditions
resulting from the disability that cause limitations may also require reasonable
accommodation.(99)
Example B: An employee, as a result of
insulin-dependent diabetes, has developed background retinopathy (a vision impairment).
The employee, who already has provided documentation showing his diabetes is a disability,
requests a device to enlarge the text on his computer screen. The employer can request
documentation that the retinopathy is related to the diabetes but the employee does not
have to show that the retinopathy is an independent disability under the ADA. Since the
retinopathy is a consequence of the diabetes (an ADA disability), the request must be
granted unless undue hardship can be shown.
- Must an employer ask whether a reasonable
accommodation is needed when an employee has not asked for one?
Generally, no. As a general rule, the individual with a disability
-- who has the most knowledge about the need for reasonable accommodation -- must inform
the employer that an accommodation is needed.(100)
However, an employer should initiate the reasonable
accommodation interactive process(101) without being
asked if the employer: (1) knows that the employee has a disability, (2) knows,
or has reason to know, that the employee is experiencing workplace problems because of the
disability, and (3) knows, or has reason to know, that the disability prevents the
employee from requesting a reasonable accommodation. If the individual with a disability
states that s/he does not need a reasonable accommodation, the employer will have
fulfilled its obligation.
Example: An employee with mental retardation
delivers messages at a law firm. He frequently mixes up messages for "R. Miller"
and "T. Miller." The employer knows about the disability, suspects that the
performance problem is a result of the disability, and knows that this employee is unable
to ask for a reasonable accommodation because of his mental retardation. The employer asks
the employee about mixing up the two names and asks if it would be helpful to spell the
first name of each person. When the employee says that would be better, the employer, as a
reasonable accommodation, instructs the receptionist to write the full first name when
messages are left for one of the Messrs. Miller.
- May an employer ask whether a
reasonable accommodation is needed when an employee with a disability has not
asked for one?
An employer may ask an
employee with a known disability whether s/he needs a reasonable accommodation when it
reasonably believes that the employee may need an accommodation. For example, an employer
could ask a deaf employee who is being sent on a business trip if s/he needs reasonable
accommodation. Or, if an employer is scheduling a luncheon at a restaurant and is
uncertain about what questions it should ask to ensure that the restaurant is accessible
for an employee who uses a wheelchair, the employer may first ask the employee. An
employer also may ask an employee with a disability who is having performance or conduct
problems if s/he needs reasonable accommodation.(102)
- May an employer tell other employees
that an individual is receiving a reasonable accommodation when employees ask
questions about a coworker with a disability?
No. An
employer may not disclose that an employee is receiving a reasonable accommodation 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.(103)
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.
Since responding to specific coworker questions may be
difficult, employers might find it helpful before such questions are raised 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. In providing general ADA information
to employees, an employer may wish to highlight the obligation to provide reasonable
accommodation, including the interactive process and different types of reasonable
accommodations, and the statute's confidentiality protections. Such information could be
delivered in orientation materials, employee handbooks, notices accompanying paystubs, and
posted flyers. Employers may wish to explore these and other alternatives with unions
because they too are bound by the ADA's confidentiality provisions. Union meetings and
bulletin boards may be further avenues for such educational efforts.
As long as there is no coercion by an employer, an employee
with a disability may voluntarily choose to disclose to coworkers his/her
disability and/or the fact that s/he is receiving a reasonable accommodation.
An employer does not have to provide a reasonable
accommodation that would cause an "undue hardship" to the employer. Generalized
conclusions will not suffice to support a claim of undue hardship. Instead, undue hardship
must be based on an individualized assessment of current circumstances that show that a
specific reasonable accommodation would cause significant difficulty or expense.(105) A determination of undue hardship should be based 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 persons employed 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.(106)
The ADA's legislative history indicates that Congress
wanted employers to consider all possible sources of outside funding when assessing
whether a particular accommodation would be too costly.(107)
Undue hardship is determined based on the net cost to the employer. Thus,
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.(108) 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.
If an employer determines that one particular reasonable
accommodation will cause undue hardship, but a second type of reasonable accommodation
will be effective and will not cause an undue hardship, then the employer must provide the
second accommodation.
An employer cannot claim undue hardship based
on employees' (or customers') fears or prejudices toward the individual's disability.(109) Nor can undue hardship be based on the fact that
provision of a reasonable accommodation might have a negative impact on the morale of
other employees. Employers, however, may be able to show undue hardship where provision of
a reasonable accommodation would be unduly disruptive to other employees's ability to
work.
Example A: An employee with breast cancer is
undergoing chemotherapy. As a consequence of the treatment, the employee is subject to
fatigue and finds it difficult to keep up with her regular workload. So that she may focus
her reduced energy on performing her essential functions, the employer transfers three of
her marginal functions to another employee for the duration of the chemotherapy
treatments. The second employee is unhappy at being given extra assignments, but the
employer determines that the employee can absorb the new assignments with little effect on
his ability to perform his own assignments in a timely manner. Since the employer cannot
show significant disruption to its operation, there is no undue hardship.(110)
Example B: A convenience store clerk with multiple
sclerosis requests that he be allowed to go from working full-time to part-time as a
reasonable accommodation because of his disability. The store assigns two clerks per
shift, and if the first clerk's hours are reduced, the second clerk's workload will
increase significantly beyond his ability to handle his responsibilities. The store
determines that such an arrangement will result in inadequate coverage to serve customers
in a timely manner, keep the shelves stocked, and maintain store security. Thus, the
employer can show undue hardship based on the significant disruption to its operations
and, therefore, can refuse to reduce the employee's hours. The employer, however, should
explore whether any other reasonable accommodation will assist the store clerk without
causing undue hardship.
- 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 the result of
modifying one employee's work hours (or granting leave) is to prevent other employees from
doing their jobs, then the significant disruption to the operations of the employer
constitutes an undue hardship.
Example A: A crane operator, due to his disability,
requests an adjustment in his work schedule so that he starts work at 8:00 a.m. rather
than 7:00 a.m., and finishes one hour later in the evening. The crane operator works with
three other employees who cannot perform their jobs without the crane operator. As a
result, if the employer grants this requested accommodation, it would have to require the
other three workers to adjust their hours, find other work for them to do from 7:00 to
8:00, or have the workers do nothing. The ADA does not require the employer to take any of
these actions because they all significantly disrupt the operations of the business. Thus,
the employer can deny the requested accommodation, but should discuss with the employee if
there are other possible accommodations that would not result in undue hardship.
Example B: A computer programmer works with a group
of people to develop new software. There are certain tasks that the entire group must
perform together, but each person also has individual assignments. It is through habit,
not necessity, that they have often worked together first thing in the morning.
The programmer, due to her disability, requests an
adjustment in her work schedule so that she works from 10:00 a.m. - 7:00 p.m. rather than
9:00 a.m. - 6:00 p.m. In this situation, the employer could grant the adjustment in hours
because it would not significantly disrupt the operations of the business. The effect of
the reasonable accommodation would be to alter when the group worked together and when
they performed their individual assignments.
- Can an employer deny a request for leave when an
employee cannot provide a fixed date of return?
Providing leave to an employee who is unable to provide a fixed date of return is
a form of reasonable accommodation. However, if an employer is able to show that the lack
of a fixed return date causes an undue hardship, then it can deny the leave. In certain
circumstances, undue hardship will derive from the disruption to the operations of the
entity that occurs because the employer can neither plan for the employee's return nor
permanently fill the position. If an employee cannot provide a fixed date of return, and
an employer determines that it can grant such leave at that time without causing undue
hardship, the employer has the right to require, as part of the interactive process, that
the employee provide periodic updates on his/her condition and possible date of return.
After receiving these updates, employers may reevaluate whether continued leave
constitutes an undue hardship.
In certain situations, an employee may be able to provide
only an approximate date of return. Treatment and recuperation do not
always permit exact timetables. Thus, an employer cannot claim undue hardship solely
because an employee can provide only an approximate date of return.(111)
In such situations, or in situations in which a return date must be postponed because of
unforeseen medical developments, employees should stay in regular communication with their
employers to inform them of their progress and discuss, if necessary, the need for
continued leave beyond what might have been granted originally.(112)
Example A: An experienced chef at a top restaurant
requests leave for treatment of her disability but cannot provide a fixed date of return.
The restaurant can show that this request constitutes undue hardship because of the
difficulty of replacing, even temporarily, a chef of this caliber. Moreover, it leaves the
employer unable to determine how long it must hold open the position or to plan for the
chef's absence. Therefore, the restaurant can deny the request for leave as a reasonable
accommodation.
Example B: An employee requests eight weeks of leave
for surgery for his disability. The employer grants the request. During surgery, serious
complications arise that require a lengthier period of recuperation than originally
anticipated, as well as additional surgery. The employee contacts the employer after three
weeks of leave to ask for an additional ten to fourteen weeks of leave (i.e., a
total of 18 to 22 weeks of leave). The employer must assess whether granting additional
leave causes an undue hardship.
- Does a cost-benefit analysis determine
whether a reasonable accommodation will cause undue hardship?
No. A cost-benefit analysis assesses the cost of a reasonable accommodation in
relation to the perceived benefit to the employer and the employee. Neither the statute
nor the legislative history supports a cost-benefit analysis to determine whether a
specific accommodation causes an undue hardship.(113)
Whether the cost of a reasonable accommodation imposes an undue hardship depends on the
employer's resources, not on the individual's salary, position, or status (e.g.,
full-time versus part-time, salary versus hourly wage, permanent versus temporary).
- Can an employer claim that a reasonable accommodation
imposes an undue hardship simply because it violates a collective bargaining
agreement (CBA)(114)?
No. First, an employer should determine if it could provide a
reasonable accommodation that would remove the workplace barrier without violating the CBA.
If no reasonable accommodation exists that avoids violating the CBA, then the ADA requires
an employer and a union, as a collective bargaining representative, to negotiate in good
faith a variance to the CBA so that the employer may provide a reasonable accommodation,
except if the proposed accommodation unduly burdens the expectations of other workers (i.e.,
causes undue hardship). Undue hardship must be assessed on a case-by-case basis to
determine the extent to which the proposed accommodation would affect the expectations of
other employees. Among the relevant factors to assess would be the duration and severity
of any adverse effects caused by granting a variance and the number of employees whose
employment opportunities would be affected by the variance.(115)
- Can an employer claim undue hardship solely
because a reasonable accommodation would require it to make changes to property
owned by someone else?
No, an employer
cannot claim undue hardship solely because a reasonable accommodation
would require it to make changes to property owned by someone else. In some situations, an
employer will have the right under a lease or other contractual relationship with the
property owner to make the type of changes that are needed. If this is the case, the
employer should make the changes, assuming no other factors exist that would make the
changes too difficult or costly. If the contractual relationship between the employer and
property owner requires the owner's consent to the kinds of changes that are required, or
prohibits them from being made, then the employer must make good faith efforts either to
obtain the owner's permission or to negotiate an exception to the terms of the contract.
If the owner refuses to allow the employer to make the modifications, the employer may
claim undue hardship. Even in this situation, however, the employer must still provide
another reasonable accommodation, if one exists, that would not cause undue hardship.
Example A: X Corp., a travel agency, leases space in
a building owned by Z Co. One of X Corp.'s employees becomes disabled and needs to use a
wheelchair. The employee requests as a reasonable accommodation that several room dividers
be moved to make his work space easily accessible. X Corp.'s lease specifically allows it
to make these kinds of physical changes, and they are otherwise easy and inexpensive to
make. The fact that X Corp. does not own the property does not create an undue hardship
and therefore it must make the requested accommodation.
Example B: Same as Example A, except that X Corp.'s
lease requires it to seek Z Co.'s permission before making any physical changes that would
involve reconfiguring office space. X Corp. requests that Z Co. allow it to make the
changes, but Z Co. denies the request. X Corp. can claim that making the physical changes
would constitute an undue hardship. However, it must provide any other type of reasonable
accommodation that would not involve making physical changes to the facility, such as
finding a different location within the office that would be accessible to the employee.
An employer should remember its obligation to make
reasonable accommodation when it is negotiating contracts with property owners.(116) Similarly, a property owner should carefully assess a
request from an employer to make physical changes that are needed as a reasonable
accommodation because failure to permit the modification might constitute
"interference" with the rights of an employee with a disability.(117) In addition, other ADA provisions may require the
property owner to make the modifications.(118)
When assessing whether a Respondent has violated the ADA by
denying a reasonable accommodation to a Charging Party, investigators should consider the
following:
- Is the Charging Party "otherwise
qualified" (i.e., is the Charging Party qualified for the job except
that, because of disability, s/he needs a reasonable accommodation to perform the
position's essential functions)?
- Did the Charging Party, or a representative, request
a reasonable accommodation (i.e., did the Charging Party let the employer
know that s/he needed an adjustment or change at work for a reason related to a medical
condition)? [see Questions 1-4]
- Did the Respondent request documentation of
the Charging Party's disability and/or functional limitations? If yes, was the
documentation provided? Did the Respondent have a legitimate reason for requesting
documentation? [see Questions 6-8]
- What specific type of reasonable accommodation,
if any, did the Charging Party request?
- Was there a nexus between the reasonable
accommodation requested and the functional limitations resulting from the Charging Party's
disability? [see Question 6]
- Was the need for reasonable accommodation related to the use
of medication, side effects from treatment, or symptoms related to a disability?
[see Questions 36-38]
- For what purpose did the Charging Party request a
reasonable accommodation:
- for the application process? [see Questions 12-13]
- in connection with aspects of job performance? [see
Questions 16-24, 32-33]
- in order to enjoy the benefits and privileges of employment?
[see Questions 14-15]
- Should the Respondent have initiated the interactive
process, or provided a reasonable accommodation, even if the Charging Party did not ask
for an accommodation? [see Questions 11, 39]
- What did the Respondent do in response to the Charging
Party's request for reasonable accommodation (i.e., did the Respondent engage in an
interactive process with the Charging Party and if so, describe both the
Respondent's and the Charging Party's actions/statements during this process)? [see
Questions 5-11]
- If the Charging Party asked the Respondent for a particular
reasonable accommodation, and the Respondent provided a different accommodation, why
did the Respondent provide a different reasonable accommodation than the one requested by
the Charging Party? Why does the Respondent believe that the reasonable
accommodation it provided was effective in eliminating the workplace barrier at issue,
thus providing the Charging Party with an equal employment opportunity? Why does the
Charging Party believe that the reasonable accommodation provided by the Respondent was
ineffective? [see Question 9]
- What type of reasonable accommodation could
the Respondent have provided that would have been effective in
eliminating the workplace barrier at issue, thus providing the Charging Party with an
equal employment opportunity?
- Does the charge involve allegations concerning reasonable
accommodation and violations of any conduct rules? [see Questions 34-35]
- If the Charging Party alleges that the Respondent failed to
provide a reassignment as a reasonable accommodation [see generally
Questions 25-30 and accompanying text]:
- did the Respondent and the Charging Party first discuss
other forms of reasonable accommodation that would enable the Charging Party to remain in
his/her current position before discussing reassignment?
- did the Respondent have any vacant positions? [see Question
27]
- did the Respondent notify the Charging Party about possible
vacant positions? [see Question 28]
- was the Charging Party qualified for a vacant position?
- if there was more than one vacant position, did the
Respondent place the Charging Party in the one that was most closely equivalent to the
Charging Party's original position?
- If the Respondent is claiming undue hardship
[see generally Questions 42-46 and accompanying text]:
- what evidence has the Respondent produced showing that
providing a specific reasonable accommodation would entail significant difficulty or
expense?
- if a modified schedule or leave is the reasonable
accommodation, is undue hardship based on the impact on the ability of other employees to
do their jobs? [see Question 42]
- if leave is the reasonable accommodation, is undue hardship
based on the amount of leave requested? [see Question 43]
- is undue hardship based on a conflict between the reasonable
accommodation and the provisions of a collective bargaining agreement? [see Question 45]
- is undue hardship based on the fact that providing the
reasonable accommodation requires changes to property owned by an entity other than the
Respondent? [see Question 46]
- if the Respondent claims that a particular reasonable
accommodation would result in undue hardship, is there another reasonable accommodation
that Respondent could have provided that would not have resulted in undue hardship?
- Based on the evidence obtained in answers to the questions
above, is the Charging Party a qualified individual with a disability (i.e.,
can the Charging Party perform the essential functions of the position with or without
reasonable accommodation)?
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, 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.
Note: Page numbering and references removed for on-line
version.
Applicants and reasonable accommodation
Attendance and reasonable accommodation
Benefits and privileges of employment and reasonable
accommodation
Access to information
Employer-sponsored services
Employer-sponsored social functions
Employer-sponsored training
Choosing between two or more reasonable accommodations
Collective bargaining agreements (seniority provisions) and
undue hardship
Conduct rules
Confidentiality and reasonable accommodation
Disparate treatment (versus reasonable accommodation)
Employees (part-time, full-time, probationary)
Essential functions and reasonable accommodation
Family and Medical Leave Act (FMLA);
Relationship with the ADA
Firm choice and reasonable accommodation
(See also "Last chance agreements")
Interactive process between employer and individual with a
disability to determine reasonable accommodation
Landlord/Tenant and reasonable accommodation
Last chance agreements and reasonable accommodation
(See also "Firm choice")
Marginal functions and reasonable accommodation
Medical treatment and reasonable accommodation
Employer monitoring of medical treatment
Failure to obtain medical treatment
Leave
Side effects of medical treatment and need for reasonable
accommodation
Medication and reasonable accommodation
Employer monitoring of medication
Failure to use medication
Side effects of medication and need for reasonable
accommodation
Personal use items and reasonable accommodation
Production standards and reasonable accommodation
Public accommodation and employer; who provides reasonable
accommodation
"Reasonable accommodation" (definition of)
Reasonable accommodation (effectiveness of)
Reasonable accommodation (how many must employer provide)
Reasonable accommodation (types of)
Access to equipment and computer technology
Changing tests and training materials
Job restructuring
Leave
Alternatives to leave
Approximate versus fixed date of return
Family and Medical Leave Act (FMLA)
Holding open an employee's position
"No-fault" leave policies
Penalizing employees who take leave
Marginal functions (modifying how they are performed;
elimination or substitution of)
Modified or part-time schedule
Family and Medical Leave Act (FMLA)
Modifying method of performing job function
Modifying workplace policies
Readers
Reassignment
Employee must be qualified for vacant position
Equivalent position
Interactive process between employer and employee
Relationship between reassignment and general transfer
policies
Salary for new position
Vacant position
When must reassignment be offered
Who is entitled to reassignment
Sign language interpreters
Supervisory methods (changing)
Working at home
Reasonable accommodation (who is entitled to receive)
Rehabilitation Act of 1973; Relationship with the ADA
Rehabilitation Act Amendment of 1992; Relationship with the
ADA
Relationship and association with a person with a
disability
Requests for reasonable accommodation
Choosing between two or more reasonable accommodations
Documentation on the need for reasonable accommodation
How to request reasonable accommodation
Interactive process between employer and individual with a
disability
Timing of employer's response to a request for reasonable
accommodation
When should individual with disability request reasonable
accommodation
Who may request reasonable accommodation
Right of individual with a disability to refuse reasonable
accommodation
Role of health care providers in reasonable accommodation
process
State or local antidiscrimination laws; Relationship with
the ADA
Supervisors and reasonable accommodation
Undue hardship
Collective bargaining agreements (seniority provisions)
Cost
Cost-benefit analysis
Definition of
Disruption to operations
Factors to assess
Landlord/Tenant
Leave
Work environment and reasonable accommodation
Footnotes
1. 42 U.S.C. 12101-12117,
12201-12213 (1994) (codified as amended).
The analysis in this guidance applies to federal sector
complaints of non-affirmative action employment discrimination arising under section 501
of the Rehabilitation Act of 1973. 29 U.S.C. 791(g) (1994). It also applies to complaints
of non-affirmative action employment discrimination arising under section 503 and
employment discrimination under section 504 of the Rehabilitation Act. 29 U.S.C. 793(d),
794(d) (1994).
The ADA's requirements regarding reasonable accommodation
and undue hardship supercede any state or local disability antidiscrimination laws to the
extent that they offer less protection than the ADA. See 29 C.F.R. 1630.1(c)(2)
(1997).
2. In addition to employers, the ADA
requires employment agencies, labor organizations, and joint labor-management committees
to provide reasonable accommodations. See 42 U.S.C. 12112(a), (b)(5)(A) (1994).
3. 29 C.F.R. pt. 1630 app. 1630.2(o)
(1997).
4. 29 C.F.R. 1630.2(o)(1)(i-iii) (1997)
(emphasis added). The notices that employers and labor unions must post informing
applicants, employees, and members of labor organizations of their ADA rights must include
a description of the reasonable accommodation requirement. These notices, which must be in
an accessible format, are available from the EEOC. See the Appendix.
5. All examples used in this document
assume that the applicant or employee has an ADA "disability."
Individuals with a relationship or association with a
person with a disability are not entitled to receive reasonable accommodations. See
Den Hartog v. Wasatch Academy, 129 F.3d 1076, 1084, 7 AD Cas. (BNA) 764, 772 (10th
Cir. 1997).
6. See 29 C.F.R. pt. 1630 app.
1630.9 (1997); see also H.R. Rep. No. 101-485, pt. 3, at 39 (1990) [hereinafter
House Judiciary Report]; H.R. Rep. No. 101-485, pt. 2, at 65 (1990) [hereinafter House
Education and Labor Report]; S. Rep. No. 101-116, at 34 (1989) [hereinafter Senate
Report].
For more information concerning requests for a reasonable
accommodation, see Questions 1-4, infra. For a discussion of the limited
circumstance under which an employer would be required to ask an individual with a
disability whether s/he needed a reasonable accommodation, see Question 39, infra.
7. 42 U.S.C. 12111(9) (1994); 29 C.F.R.
1630.2(o)(2)(i-ii) (1997).
8. "[W]ith or without reasonable
accommodation" includes, if necessary, reassignment to a vacant position. Thus, if an
employee is no longer qualified because of a disability to continue in his/her present
position, an employer must reassign him/her as a reasonable accommodation. See the
section on "Reassignment," infra pp. 37-38 and n.73.
9. 29 C.F.R. pt. 1630 app. 1630.2(n)
(1997).
10. 29 C.F.R. pt. 1630 app. 1630.9
(1997).
11. See 29 C.F.R. pt. 1630 app.
1630.9 (1997); Senate Report, supra note 6, at 35 ("reasonableness" of an
accommodation is assessed "in terms of effectiveness and equal opportunity");
House Education and Labor Report, supra note 6, at 66 ("[a] reasonable
accommodation should be effective for the employee"); see also Bryant v.
Better Business Bureau of Greater Maryland, 923 F. Supp. 720, 736, 5 AD Cas. (BNA)
625, 634-35 (D. Md. 1996); Dutton v. Johnson County Bd. of Comm'rs, 859 F. Supp.
498, 507, 3 AD Cas. (BNA) 808, 815 (D. Kan. 1994); Davis v. York Int'l, Inc., 2 AD
Cas. (BNA) 1810, 1816 (D. Md. 1993).
Some courts have said that in determining whether an
accommodation is "reasonable," one must look at the costs of the accommodation
in relation to its benefits. See, e.g., Monette v. Electronic Data Sys. Corp.,
90 F.3d 1173, 1184 n.10, 5 AD Cas. (BNA) 1326, 1335 n.10 (6th Cir. 1996); Vande Zande
v. Wisconsin Dept. of Admin., 44 F.3d 538, 543, 3 AD Cas. (BNA) 1636, 1638-39 (7th
Cir. 1995). This "cost/benefit" analysis has no foundation in the statute,
regulations, or legislative history of the ADA. See 42 U.S.C. 12111(9), (10)
(1994); 29 C.F.R. 1630.2(o), (p) (1997); see also Senate Report, supra, at
31-35; House Education and Labor Report, supra, at 57-58.
12. A TTY is a device that permits
individuals with hearing and speech impairments to communicate by telephone.
13. 42 U.S.C. 12111(9) (1994)
("The term 'reasonable accommodation' may include -- (A) making existing facilities .
. . readily accessible . . .; and (B) job restructuring; part-time or modified work
schedules, reassignment to a vacant position; acquisition or modification of equipment or
devices, . . .").
14. See 42 U.S.C. 12112
(b)(5)(A) (1994) (it is a form of discrimination to fail to provide a reasonable
accommodation "unless such covered entity can demonstrate that the accommodation
would impose an undue hardship . . ."); see also 42 U.S.C. 12111(10) (1994)
(defining "undue hardship" based on factors assessing cost and difficulty).
The legislative history discusses financial,
administrative, and operational limitations on providing reasonable accommodations only in
the context of defining "undue hardship." Compare Senate Report, supra
note 6, at 31-34 with 35-36; House Education and Labor Report, supra note 6,
at 57-58 with 67-70.
15. See 42 U.S.C.
12111(10) (1994); 29 C.F.R. 1630.2(p) (1997); 29 C.F.R. pt. 1630 app. 1630.2(p)
(1997).
16. See 29 C.F.R. pt. 1630 app.
1630.15(d) (1997). See also Eckles v. Consolidated Rail Corp., 94 F.3d 1041,
1048-49, 5 AD Cas. (BNA) 1367, 1372-73 (7th Cir. 1996); Bryant v. Better Business
Bureau of Maryland, 923 F. Supp. 720, 740, 5 AD Cas. (BNA) 625, 638 (D. Md. 1996).
17. See, e.g., Schmidt v.
Safeway Inc., 864 F. Supp. 991, 997, 3 AD Cas. (BNA) 1141, 1146-47 (D. Or. 1994)
("statute does not require the plaintiff to speak any magic words. . . . The employee
need not mention the ADA or even the term 'accommodation.'"). See also Hendricks-Robinson
v. Excel Corp., 154 F.3d 685, 694, 8 AD Cas. (BNA) 875, 882 (7th Cir. 1998) ("[a]
request as straightforward as asking for continued employment is a sufficient request for
accommodation"); Bultemeyer v. Ft. Wayne Community Schs., 100 F.3d 1281, 1285,
6 AD Cas. (BNA) 67, 71 (7th Cir. 1996) (an employee with a known psychiatric disability
requested reasonable accommodation by stating that he could not do a particular job and by
submitting a note from his psychiatrist); McGinnis v. Wonder Chemical Co., 5 AD
Cas. (BNA) 219 (E.D. Pa. 1995) (employer on notice that accommodation had been requested
because: (1) employee told supervisor that his pain prevented him from working and (2)
employee had requested leave under the Family and Medical Leave Act).
Nothing in the ADA requires an individual to use legal
terms or to anticipate all of the possible information an employer may need in order to
provide a reasonable accommodation. The ADA avoids a formulistic approach in favor of an
interactive discussion between the employer and the individual with a disability, after
the individual has requested a change due to a medical condition. Nevertheless, some
courts have required that individuals initially provide detailed information in order to
trigger the employer's duty to investigate whether reasonable accommodation is required. See,
e.g., Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 165, 5 AD Cas. (BNA)
1653, 1660 (5th Cir. 1996); Miller v. Nat'l Cas. Co., 61 F.3d 627, 629-30, 4 AD
Cas. (BNA) 1089, 1090-91 (8th Cir. 1995).
18. See Questions 5 - 7, infra,
for a further discussion on when an employer may request reasonable documentation about a
person's "disability" and the need for reasonable accommodation.
19. Cf. Beck v. Univ. of Wis.
Bd. of Regents, 75 F.3d 1130, 5 AD Cas. (BNA) 304 (7th Cir. 1996); Schmidt v.
Safeway Inc., 864 F. Supp. 991, 997, 3 AD Cas. (BNA) 1141, 1146 (D. Or. 1994). But
see Miller v. Nat'l Casualty Co., 61 F.3d 627, 630, 4 AD Cas. (BNA) 1089, 1091
(8th Cir. 1995) (employer had no duty to investigate reasonable accommodation despite the
fact that the employee's sister notified the employer that the employee "was mentally
falling apart and the family was trying to get her into the hospital").
The employer should be receptive to any relevant
information or requests it receives from a third party acting on the individual's behalf
because the reasonable accommodation process presumes open communication in order to help
the employer make an informed decision. See 29 C.F.R. 1630.2(o), 1630.9 (1997); 29
C.F.R. pt. 1630 app. 1630.2(o), 1630.9 (1997).
20. Although individuals with
disabilities are not required to keep records, they may find it useful to document
requests for reasonable accommodation in the event there is a dispute about whether or
when they requested accommodation. Employers, however, must keep all
employment records, including records of requests for reasonable accommodation, for one
year from the making of the record or the personnel action involved, whichever occurs
later. If a charge is filed, records must be preserved until the charge is resolved. 29
C.F.R. 1602.14 (1997).
21. Cf. Masterson v. Yellow
Freight Sys., Inc., Nos. 98-6126, 98-6025, 1998 WL 856143 (10th Cir. Dec. 11, 1998)
(fact that an employee with a disability does not need a reasonable accommodation all the
time does not relieve employer from providing an accommodation for the period when he does
need one).
22. See 29 C.F.R. 1630.2(o)(3)
(1997); 29 C.F.R. pt. 1630 app. 1630.2(o), 1630.9 (1997); see also Haschmann v.
Time Warner Entertainment Co., 151 F.3d 591, 601, 8 AD Cas. (BNA) 692, 700 (7th Cir.
1998); Dalton v. Subaru-Isuzu, 141 F.3d 667, 677, 7 AD Cas. (BNA) 1872, 1880-81
(7th Cir. 1998). The appendix to the regulations at 1630.9 provides a detailed discussion
of the reasonable accommodation process.
Engaging in an interactive process helps employers to
discover and provide reasonable accommodation. Moreover, in situations where an employer
fails to provide a reasonable accommodation (and undue hardship would not be a valid
defense), evidence that the employer engaged in an interactive process can demonstrate a
"good faith" effort which can protect an employer from having to pay punitive
and certain compensatory damages. See 42 U.S.C. 1981a(a)(3) (1994).
23. See 29 C.F.R. pt. 1630 app.
1630.9 (1997). The Appendix to this Guidance provides a list of resources to identify
possible accommodations.
24. 29 C.F.R. pt. 1630 app. 1630.9
(1997); see also EEOC Enforcement Guidance: Preemployment Disability-Related
Questions and Medical Examinations at 6, 8 FEP Manual (BNA) 405:7191, 7193 (1995)
[hereinafter Preemployment Questions and Medical Examinations]; EEOC Enforcement Guidance:
The Americans with Disabilities Act and Psychiatric Disabilities at 22-23, 8 FEP Manual
(BNA) 405:7461, 7472-73 (1997) [hereinafter ADA and Psychiatric Disabilities]. Although
the latter Enforcement Guidance focuses on psychiatric disabilities, the legal standard
under which an employer may request documentation applies to disabilities generally.
When an employee seeks leave as a reasonable accommodation,
an employer's request for documentation about disability and the need for leave may
overlap with the certification requirements of the Family and Medical Leave Act (FMLA), 29
C.F.R. 825.305-.306, 825.310-.311 (1997).
25. Since a doctor cannot disclose
information about a patient without his/her permission, an employer must obtain a release
from the individual that will permit his/her doctor to answer questions. The release
should be clear as to what information will be requested. Employers must maintain the
confidentiality of all medical information collected during this process, regardless of
where the information comes from. See Question 41 and note 103, infra.
26. See Question 9, infra, for
information on choosing between two or more effective accommodations.
27. This employee also might be covered
under the Family and Medical Leave Act, and if so, the employer would need to comply with
the requirements of that statute.
28. See Templeton v. Neodata
Servs., Inc., No. 98-1106, 1998 WL 852516 (10th Cir. Dec. 10, 1998); Beck v. Univ.
of Wis. Bd. of Regents, 75 F.3d 1130, 1134, 5 AD Cas. (BNA) 304, 307 (7th Cir. 1996); McAlpin
v. National Semiconductor Corp., 921 F. Supp. 1518, 1525, 5 AD Cas. (BNA) 1047, 1052
(N.D. Tex. 1996).
29. See Hendricks-Robinson v.
Excel Corp., 154 F.3d 685, 700, 8 AD Cas. (BNA) 875, 887 (7th Cir. 1998).
30. If an individual provides
sufficient documentation to show the existence of an ADA disability and the need for
reasonable accommodation, continued efforts by the employer to require that the individual
see the employer's health professional could be considered retaliation.
31. Employers also may consider
alternatives like having their health professional consult with the individual's health
professional, with the employee's consent.
32. See 29 C.F.R. pt. 1630 app.
1630.9 (1997); see also Stewart v. Happy Herman's Cheshire Bridge, Inc.,
117 F.3d 1278, 1285-86, 6 AD Cas. (BNA) 1834, 1839 (11th Cir. 1997); Hankins v. The
Gap, Inc., 84 F.3d 797, 800, 5 AD Cas. (BNA) 924, 926-27 (6th Cir. 1996); Gile v.
United Airlines, Inc., 95 F.3d 492, 499, 5 AD Cas. (BNA) 1466, 1471 (7th Cir. 1996).
33. 29 C.F.R. pt. 1630 app. 1630.9
(1997).
34. See Dalton v.
Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 677, 7 AD Cas. (BNA) 1872, 1880 (7th Cir.
1998).
35. In determining whether there has
been an unnecessary delay in responding to a request for reasonable accommodation,
relevant factors would include: (1) the reason(s) for the delay, (2) the length of the
delay, (3) how much the individual with a disability and the employer each contributed to
the delay, (4) what the employer was doing during the delay, and (5) whether the required
accommodation was simple or complex to provide.
36. See 29 C.F.R. pt. 1630 app.
1630.9 (1997); see also Hankins v. The Gap, Inc., 84 F.3d 797, 801, 5 AD
Cas. (BNA) 924, 927 (6th Cir. 1996).
37. 42 U.S.C. 12112(d)(2)(A) (1994); 29
C.F.R. 1630.13(a) (1997). For a thorough discussion of these requirements, see
Preemployment Questions and Medical Examinations, supra note 24, at 6-8, 8 FEP
Manual (BNA) 405:7193-94.
38. 42 U.S.C. 12112(d)(3) (1994); 29
C.F.R. 1630.14(b) (1997); see also Preemployment Questions and Medical
Examinations, supra note 24, at 20, 8 FEP Manual (BNA) 405:7201.
39. See Question 12, supra,
for the circumstances under which an employer may ask an applicant whether s/he will need
reasonable accommodation to perform specific job functions.
40. The discussions and examples in
this section assume that there is only one effective accommodation and that the reasonable
accommodation will not cause undue hardship.
41. See 29 C.F.R. pt. 1630 app.
1630.9 (1997).
42. 42 U.S.C. 12181(7), 12182(1)(A),
(2)(A)(iii) (1994).
43. The discussions and examples in
this section assume that there is only one effective accommodation and that the reasonable
accommodation will not cause undue hardship.
The types of reasonable accommodations discussed in this
section are not exhaustive. For example, employees with disabilities may request
reasonable accommodations to modify the work environment, such as changes to the
ventilation system or relocation of a work space.
See the Appendix for additional resources to
identify other possible reasonable accommodations.
44. 42 U.S.C. 12111(9)(B) (1994);
29 C.F.R. pt. 1630 app. 1630.2(o), 1630.9 (1997); see Benson v. Northwest
Airlines, Inc., 62 F.3d 1108, 1112-13, 4 AD Cas. (BNA) 1234, 1236-37 (8th Cir. 1995).
45. 29 C.F.R. pt. 1630 app. 1630.2(o)
(1997). See Cehrs v. Northeast Ohio Alzheimer's, 155 F.3d 775, 782, 8 AD
Cas. (BNA) 825, 830-31 (6th Cir. 1998).
An employee who needs leave, or a part-time or modified
schedule, as a reasonable accommodation also may be entitled to leave under the Family and
Medical Leave Act. See Questions 21 and 23, infra.
46. See A Technical
Assistance Manual on the Employment Provisions (Title I) of the Americans with
Disabilities Act, at 3.10(4), 8 FEP Manual (BNA) 405:6981, 7011 (1992) [hereinafter TAM].
47. 42 U.S.C. 12111(9)(B) (1994); 29
C.F.R. 1630.2(o)(2)(ii) (1997). See also Question 24, infra. While undue
hardship cannot be based solely on the existence of a no-fault leave policy, the employer
may be able to show undue hardship based on an individualized assessment showing the
disruption to the employer's operations if additional leave is granted beyond the period
allowed by the policy. In determining whether undue hardship exists, the employer should
consider how much additional leave is needed (e.g., two weeks, six months, one
year?).
48. See Schmidt v. Safeway
Inc., 864 F. Supp. 991, 996-97, 3 AD Cas. (BNA) 1141, 1145-46 (D. Or. 1994); Corbett
v. National Products Co., 4 AD Cas. (BNA) 987, 990 (E.D. Pa. 1995).
49. See EEOC Enforcement
Guidance: Workers' Compensation and the ADA at 16, 8 FEP Manual (BNA) 405:7391, 7399
(1996) [hereinafter Workers' Compensation and the ADA]. See also pp. 37-45, infra,
for information on reassignment as a reasonable accommodation.
50. Cf. Kiel v. Select
Artificials, 142 F.3d 1077, 1080, 8 AD Cas. (BNA) 43, 44 (8th Cir. 1998).
51. See Criado v. IBM,
145 F.3d 437, 444-45, 8 AD Cas. (BNA) 336, 341 (1st Cir. 1998).
52. But see Matthews v.
Commonwealth Edison Co., 128 F.3d 1194, 1197-98, 7 AD Cas. (BNA) 1651, 1653-54 (7th
Cir. 1997) (an employee who, because of a heart attack, missed several months of work and
returned on a part-time basis until health permitted him to work full-time, could be
terminated during a RIF based on his lower productivity). In reaching this decision, the
Seventh Circuit failed to consider that the employee needed leave and a modified schedule
as reasonable accommodations for his disability, and that the accommodations became
meaningless when he was penalized for using them.
53. If an employee, however, qualifies
for leave under the Family and Medical Leave Act, an employer may not
require him/her to remain on the job with an adjustment in lieu of taking leave. See
29 C.F.R. 825.702(d)(1) (1997).
54. See Question 9, supra.
55. For more detailed information on
issues raised by the interplay between these statutes, refer to the FMLA/ADA Fact Sheet
listed in the Appendix.
56. Employers should remember that many
employees eligible for FMLA leave will not be entitled to leave as a reasonable
accommodation under the ADA, either because they do not meet the ADA's definition of
disability or, if they do have an ADA disability, the need for leave is unrelated to that
disability.
57. 29 C.F.R. 825.214(a), 825.215
(1997).
58. For further information on the
undue hardship factors, see infra p. 54.
59. 29 C.F.R. 825.702(c)(4) (1997).
60. See Ralph v. Lucent
Technologies, Inc., 135 F.3d 166, 172, 7 AD Cas. (BNA) 1345, 1349 (1st Cir. 1998) (a
modified schedule is a form of reasonable accommodation).
61. Certain courts have characterized
attendance as an "essential function." See, e.g., Carr v. Reno,
23 F.3d 525, 530, 3 AD Cas. (BNA) 434, 438 (D.C. Cir. 1994); Jackson v. Department of
Veterans Admin., 22 F.3d 277, 278-79, 3 AD Cas. (BNA) 483, 484 (11th Cir. 1994).
Attendance, however, is not an essential function as defined by the ADA because it is not
one of "the fundamental job duties of the employment position."
29 C.F.R. 1630.2(n)(1) (1997) (emphasis added). As the regulations make clear, essential
functions are duties to be performed. 29 C.F.R. 1630.2(n)(2) (1997). See Haschmann
v. Time Warner Entertainment Co., 151 F.3d 591, 602, 8 AD Cas. (BNA) 692, 701 (7th
Cir. 1998); Cehrs v. Northeast Ohio Alzheimer's, 155 F.3d 775, 782-83, 8 AD Cas.
(BNA) 825, 830-31 (6th Cir. 1998).
On the other hand, attendance is relevant to
job performance and employers need not grant all requests for a modified
schedule. To the contrary, if the time during which an essential function is performed is integral
to its successful completion, then an employer may deny a request to modify an
employee's schedule as an undue hardship.
62. Employers covered under the Family
and Medical Leave Act (FMLA) should determine whether any denial of leave or a modified
schedule is also permissible under that law. See 29 C.F.R. 825.203 (1997).
63. For more detailed information on
issues raised by the interplay between these statutes, refer to the FMLA/ADA Fact Sheet
listed in the Appendix.
64. See infra pp. 37-45
for more information on reassignment, including under what circumstances an employer and
employee may voluntarily agree that a transfer is preferable to having the employee
remain in his/her current position.
65. 29 C.F.R. 825.204 (1997); see
also special rules governing intermittent leave for instructional employees at
825.601, 825.602.
66. 29 C.F.R. 825.209, 825.210 (1997).
67. 42 U.S.C. 12111(9)(B) (1994); 29
C.F.R. 1630.2(o)(2)(ii) (1997).
68. See Dutton v. Johnson
County Bd. of Comm'rs, 868 F. Supp. 1260, 1264-65, 3 AD Cas. (BNA) 1614, 1618 (D. Kan.
1994).
69. See 29 C.F.R. pt. 1630 app.
1630.15(b), (c) (1997). See also Question 17, supra.
70. But cf. Miller v. Nat'l
Casualty Co., 61 F.3d 627, 629-30, 4 AD Cas. (BNA) 1089, 1090 (8th Cir. 1995) (court
refuses to find that employee's sister had requested reasonable accommodation despite the
fact that the sister informed the employer that the employee was having a medical crisis
necessitating emergency hospitalization).
71. Pursuant to the Rehabilitation Act
Amendment of 1992, the ADA's employment standards apply to all non-affirmative action
employment discrimination claims filed by federal applicants or employees with
disabilities under section 501 of the Rehabilitation Act. Pub. L. No. 102-569, 503(b), 106
Stat. 4344 (1992) (codified as amended at 29 U.S.C. 791(g) (1994)). The Rehabilitation Act
regulations governing reassignment of federal employees with disabilities, which were
promulgated several months prior to the enactment of the Rehabilitation Act Amendment,
differ in several respects from the ADA's requirements. See 29 C.F.R. 1614.203(g)
(1997). For non-discrimination purposes, federal agencies must follow the ADA standards.
For information on how reassignment may apply to employers
who provide light duty positions, see Workers' Compensation and the ADA, supra
note 49, at 20-23, 8 FEP Manual (BNA) 405:7401-03.
72. 42 U.S.C. 12111(9)(B) (1994);
29 C.F.R. 1630.2(o)(2)(ii) (1997). See Benson v. Northwest Airlines, Inc.,
62 F.3d 1108, 1114, 4 AD Cas. (BNA) 1234, 1238 (8th Cir. 1995); Monette v. Electronic
Data Sys. Corp., 90 F.3d 1173, 1187, 5 AD Cas. (BNA) 1326, 1338 (6th Cir. 1996); Gile
v. United Airlines, Inc., 95 F.3d 492, 498, 5 AD Cas. (BNA) 1466, 1471 (7th Cir.
1996).
Reassignment is available only to employees, not to
applicants. 29 C.F.R. pt. 1630 app. 1630.2(o) (1997).
73. 29 C.F.R. pt. 1630 app. 1630.2(o)
(1997); see Haysman v. Food Lion, Inc., 893 F. Supp. 1092, 1104, 4 AD Cas.
(BNA) 1297, 1305 (S.D. Ga. 1995).
Some courts have found that an employee who is unable to
perform the essential functions of his/her current position is
unqualified to receive a reassignment. See, e.g., Schmidt v. Methodist Hosp. of
Indiana, Inc., 89 F.3d 342, 345, 5 AD Cas. (BNA) 1340, 1342 (7th Cir. 1996); Pangalos
v. Prudential Ins. Co. of Am., 5 AD Cas. (BNA) 1825, 1826 (E.D. Pa. 1996). These
decisions, however, nullify Congress' inclusion of reassignment in the ADA. An employee
requires a reassignment only if s/he is unable to continue performing the
essential functions of his/her current position, with or without reasonable accommodation.
Thus, an employer must provide reassignment either when reasonable accommodation in an
employee's current job would cause undue hardship or when it would not be possible. See
Aka v. Washington Hosp. Ctr.,156 F.3d 1284, 1300-01, 8 AD Cas. (BNA) 1093, 1107-08
(D.C. Cir. 1998); Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 678, 7 AD
Cas. (BNA) 1872, 1880 (7th Cir. 1998); see also ADA and Psychiatric Disabilities, supra
note 24, at 28, 8 FEP Manual (BNA) 405:7476; Workers' Compensation and the ADA, supra
note 49, at 17-18, 8 FEP Manual (BNA) 405:7399-7400.
74. 29 C.F.R. 1630.2(m) (1997); 29
C.F.R. pt. 1630 app. 1630.2(m), 1630.2(o) (1997). See Stone v. Mount Vernon,
118 F.3d 92, 100-01, 6 AD Cas. (BNA) 1685, 1693 (2d Cir. 1997).
75. See Quintana v. Sound
Distribution Corp., 6 AD Cas. (BNA) 842, 846 (S.D.N.Y. 1997).
76. See 29 C.F.R. pt. 1630 app.
1630.2(o) (1997); Senate Report, supra note 6, at 31; House Education and Labor
Report, supra note 6, at 63.
77. For suggestions on what the
employee can do while waiting for a position to become vacant within a reasonable amount
of time, see note 86, infra.
78. See 29 C.F.R. pt. 1630 app.
1630.2(o) (1997); see also White v. York Int'l Corp., 45 F.3d 357, 362, 3 AD
Cas. (BNA) 1746, 1750 (10th Cir. 1995).
79. See 29 C.F.R. pt. 1630 app.
1630.2(o) (1997).
80. The current regulation governing
reassignment of federal employees states that reassignment is available to
"nonprobationary" employees. See 29 C.F.R. 1614.203(g) (1997). This
regulation does not state the applicable ADA non-discrimination standard. See note
71, supra.
81. See Aka v. Washington
Hosp. Ctr., 156 F.3d 1284, 1304-05, 8 AD Cas. (BNA) 1093, 1110-11 (D.C. Cir. 1998); United
States v. Denver, 943 F. Supp. 1304, 1312, 6 AD Cas. (BNA) 245, 252 (D. Colo. 1996). See
also Question 24, supra.
82. 42 U.S.C. 12111(9)(B) (1994); 29
C.F.R. 1630.2(o)(2)(ii) (1997); see Hendricks-Robinson v. Excel Corp., 154
F.3d 685, 695, 8 AD Cas. (BNA) 875, 883 (7th Cir. 1998); see generally Dalton v.
Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 677-78, 7 AD Cas. (BNA) 1872, 1880-81
(7th Cir. 1998).
83. See Gile v. United
Airlines, Inc., 95 F.3d 492, 499, 5 AD Cas. (BNA) 1466, 1472 (7th Cir. 1996); see
generally United States v. Denver, 943 F. Supp. 1304, 1311-13, 6 AD Cas. (BNA)
245, 251-52 (D. Colo. 1996).
Some courts have limited the obligation to provide a
reassignment to positions within the same department or facility in which the employee
currently works, except when the employer's standard practice is to provide
inter-department or inter-facility transfers for all employees. See, e.g., Emrick
v. Libbey-Owens-Ford Co., 875 F. Supp. 393, 398, 4 AD Cas. (BNA) 1, 4-5 (E.D. Tex.
1995). However, the ADA requires modification of workplace policies, such as transfer
policies, as a form of reasonable accommodation. See Question 24, supra.
Therefore, policies limiting transfers cannot be a per se bar to reassigning someone
outside his/her department or facility. Furthermore, the ADA requires employers to provide
reasonable accommodations, including reassignment, regardless of whether such
accommodations are routinely granted to non-disabled employees. See Question 26, supra.
84. See Hendricks-Robinson v.
Excel Corp., 154 F.3d 685, 695-96, 697-98, 8 AD Cas. (BNA) 875, 883, 884 (7th Cir.
1998) (employer cannot mislead disabled employees who need reassignment about full range
of vacant positions; nor can it post vacant positions for such a short period of time that
disabled employees on medical leave have no realistic chance to learn about them); Mengine
v. Runyon, 114 F.3d 415, 420, 6 AD Cas. (BNA) 1530, 1534 (3d Cir. 1997) (an employer
has a duty to make reasonable efforts to assist an employee in identifying a vacancy
because an employee will not have the ability or resources to identify a vacant position
absent participation by the employer); Woodman v. Runyon, 132 F.3d 1330, 1344, 7 AD
Cas. (BNA) 1189, 1199 (10th Cir. 1997) (federal employers are far better placed than
employees to investigate in good faith the availability of vacant positions).
85. See Dalton v.
Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 678, 7 AD Cas. (BNA) 1872, 1881 (7th Cir.
1998) (employer must first identify full range of alternative positions and then determine
which ones employee qualified to perform, with or without reasonable accommodation); Hendricks-Robinson
v. Excel Corp., 154 F.3d 685, 700, 8 AD Cas. (BNA) 875, 886-87 (7th Cir. 1998)
(employer's methodology to determine if reassignment is appropriate does not constitute
the "interactive process" contemplated by the ADA if it is directive rather than
interactive); Mengine v. Runyon, 114 F.3d 415, 419-20, 6 AD Cas. (BNA) 1530, 1534
(3d Cir. 1997) (once an employer has identified possible vacancies, an employee has a duty
to identify which one he is capable of performing).
86. If it will take several weeks to
determine whether an appropriate vacant position exists, the employer and employee should
discuss the employee's status during that period. There are different possibilities
depending on the circumstances, but they may include: use of accumulated paid leave, use
of unpaid leave, or a temporary assignment to a light duty position. Employers also may
choose to take actions that go beyond the ADA's requirements, such as eliminating an
essential function of the employee's current position, to enable an employee to continue
working while a reassignment is sought.
87. 42 U.S.C. 12111(9)(b) (1994); 29
C.F.R. pt. 1630 app. 1630.2(o) (1997). See Senate Report, supra note
6, at 31 ("If an employee, because of disability, can no longer perform the essential
functions of the job that she or he has held, a transfer to another vacant job for which
the person is qualified may prevent the employee from being out of work and the employer
from losing a valuable worker."). See Wood v. County of Alameda, 5 AD
Cas. (BNA) 173, 184 (N.D. Cal. 1995) (when employee could no longer perform job because of
disability, she was entitled to reassignment to a vacant position, not simply an
opportunity to "compete"); cf. Aka v. Washington Hosp. Ctr., 156
F.3d 1284, 1304-05, 8 AD Cas. (BNA) 1093, 1110-11 (D.C. Cir. 1998) (the court, in
interpreting a collective bargaining agreement provision authorizing reassignment of
disabled employees, states that "[a]n employee who is allowed to compete for jobs
precisely like any other applicant has not been "reassigned"); United States
v. Denver, 943 F. Supp. 1304, 1310-11, 6 AD Cas. (BNA) 245, 250 (D. Colo. 1996) (the ADA
requires employers to move beyond traditional analysis and consider reassignment as a
method of enabling a disabled worker to do a job).
Some courts have suggested that reassignment means simply
an opportunity to compete for a vacant position. See, e.g., Daugherty v. City of
El Paso, 56 F.3d 695, 700, 4 AD Cas. (BNA) 993, 997 (5th Cir. 1995). Such an
interpretation nullifies the clear statutory language stating that reassignment is a form
of reasonable accommodation. Even without the ADA, an employee with a disability may have
the right to compete for a vacant position.
88. 29 C.F.R. pt. 1630 app. 1630.2(o)
(1997).
89. The discussions and examples in
this section assume that there is only one effective accommodation and that the reasonable
accommodation will not cause an undue hardship.
90. See Ralph v. Lucent
Technologies, Inc., 135 F.3d 166, 171, 7 AD Cas. (BNA) 1345, 1349 (1st Cir. 1998).
91. For a discussion on ways to modify
supervisory methods, see ADA and Psychiatric Disabilities, supra note 24, at
26-27, 8 FEP Manual (BNA) 405:7475.
92. See 29 C.F.R.
1630.2(o)(1)(ii), (2)(ii) (1997) (modifications or adjustments to the manner or
circumstances under which the position held or desired is customarily performed that
enable a qualified individual with a disability to perform the essential functions).
93. Courts have differed regarding
whether "work-at-home" can be a reasonable accommodation. Compare Langon
v. Department of Health and Human Servs., 959 F.2d 1053, 1060, 2 AD Cas. (BNA) 152,
159 (D.C. Cir. 1992); Anzalone v. Allstate Insurance Co., 5 AD Cas. (BNA) 455, 458
(E.D. La. 1995); Carr v. Reno, 23 F.3d 525, 530, 3 AD Cas. (BNA) 434, 437-38
(D.D.C. 1994), with Vande Zande v. Wisconsin Dep't of Admin., 44 F.3d 538,
545, 3 AD Cas. (BNA) 1636, 1640 (7th Cir. 1995). Courts that have rejected working at home
as a reasonable accommodation focus on evidence that personal contact, interaction, and
coordination are needed for a specific position. See, e.g., Whillock v. Delta
Air Lines, 926 F. Supp. 1555, 1564, 5 AD Cas. (BNA) 1027 (N.D. Ga. 1995), aff'd,
86 F.3d 1171, 7 AD Cas. (BNA) 1267 (11th Cir. 1996); Misek-Falkoff v. IBM Corp.,
854 F. Supp. 215, 227-28, 3 AD Cas. (BNA) 449, 457-58 (S.D.N.Y. 1994), aff'd, 60
F.3d 811, 6 AD Cas. (BNA) 576 (2d Cir. 1995).
94. See 29 C.F.R. 1630.15(d)
(1997).
95. See Siefken v. Arlington
Heights, 65 F.3d 664, 666, 4 AD Cas. (BNA) 1441, 1442 (7th Cir. 1995). Therefore, it
may be in the employee's interest to request a reasonable accommodation before
performance suffers or conduct problems occur. For more information on conduct standards,
including when they are job-related and consistent with business necessity, see ADA
and Psychiatric Disabilities, supra note 24, at 29-32, 8 FEP Manual (BNA)
405:7476-78.
An employer does not have to offer a "firm
choice" or a "last chance agreement" to an employee who performs poorly or
who has engaged in misconduct because of alcoholism. "Firm choice" or "last
chance agreements" involve excusing past performance or conduct problems resulting
from alcoholism in exchange for an employee's receiving substance abuse treatment and
refraining from further use of alcohol. Violation of such an agreement generally warrants
termination. Since the ADA does not require employers to excuse poor performance or
violation of conduct standards that are job-related and consistent with business
necessity, an employer has no obligation to provide "firm choice" or a
"last chance agreement" as a reasonable accommodation. See Johnson v.
Babbitt, EEOC Docket No. 03940100 (March 28, 1996). However, an employer may choose to
offer an employee a "firm choice" or a "last chance agreement."
96. See ADA and Psychiatric
Disabilities, supra note 24, at 31-32, 8 FEP Manual (BNA) 405:7477-78.
97. See Robertson v. The
Neuromedical Ctr., 161 F.3d 292, 296 (5th Cir. 1998); see also ADA and
Psychiatric Disabilities, supra note 24, at 27-28, 8 FEP Manual (BNA) 405:7475.
98. While from an employer's
perspective it may appear that an employee is "failing" to use medication or
follow a certain treatment, such questions can be complex. There are many reasons why a
person would choose to forgo treatment, including expense and serious side effects.
99. See Vande Zande v.
Wisconsin Dep't of Admin., 44 F.3d 538, 544, 3 AD Cas. (BNA) 1636, 1639 (7th Cir.
1995).
100. See 29 C.F.R. pt. 1630
app. 1630.9 (1997); see also House Judiciary Report, supra note 6, at 39;
House Education and Labor Report, supra note 6, at 65; Senate Report, supra
note 6, at 34.
See, e.g., Taylor v. Principal Fin. Group, Inc.,
93 F.3d 155, 165, 5 AD Cas. (BNA) 1653, 1659 (5th Cir. 1996); Tips v. Regents of Texas
Tech Univ., 921 F. Supp. 1515, 1518 (N.D. Tex. 1996); Cheatwood v. Roanoke Indus.,
891 F. Supp. 1528, 1538, 5 AD Cas. (BNA) 141, 147 (N.D. Ala. 1995); Mears v. Gulfstream
Aerospace Corp., 905 F. Supp. 1075, 1080, 5 AD Cas. (BNA) 1295, 1300 (S.D. Ga. 1995), aff'd,
87 F.3d 1331, 6 AD Cas. (BNA) 1152 (11th Cir. 1996). But see Schmidt v. Safeway
Inc., 864 F. Supp. 991, 997, 3 AD Cas. (BNA) 1141, 1146-47 (D. Or. 1994) (employer had
obligation to provide reasonable accommodation because it knew of the employee's alcohol
problem and had reason to believe that an accommodation would permit the employee to
perform the job).
An employer may not assert that it never received a request
for reasonable accommodation, as a defense to a claim of failure to provide reasonable
accommodation, if it actively discouraged an individual from making such a request.
For more information about an individual requesting
reasonable accommodation, see Questions 1-4, supra.
101. See Question 5, supra,
for information on the interactive process.
102. 29 C.F.R. pt. 1630 app. 1630.9
(1997).
103. 42 U.S.C. 12112(d)(3)(B),
(d)(4)(C) (1994); 29 C.F.R. 1630.14(b)(1) (1997). The limited exceptions to the ADA
confidentiality requirements are:
(1) supervisors and managers may be told about necessary
restrictions on the work or duties of the employee and about necessary accommodations; (2)
first aid and safety personnel may be told if the disability might require emergency
treatment; and
(3) government officials investigating compliance with the ADA
must be given relevant information on request. In addition, the Commission has interpreted
the ADA to allow employers to disclose medical information in the following circumstances:
(1) in accordance with state workers' compensation laws, employers may disclose
information to state workers' compensation offices, state second injury funds, or workers'
compensation insurance carriers; and (2) employers are permitted to use medical
information for insurance purposes. See 29 C.F.R. pt. 1630 app. 1630.14(b) (1997);
Preemployment Questions and Medical Examinations, supra note 24, at 23, 8 FEP
Manual (BNA) 405:7201; Workers' Compensation and the ADA, supra note 49, at 7, 8
FEP Manual (BNA) 405:7394.
104. The discussions and examples in
this section assume that there is only one effective accommodation.
105. See 29 C.F.R. pt. 1630
app. 1630.15(d) (1996); see also Stone v. Mount Vernon, 118 F.3d 92, 101, 6
AD Cas. (BNA) 1685, 1693 (2d Cir. 1997) (an employer who has not hired any persons with
disabilities cannot claim undue hardship based on speculation that if it were to hire
several people with disabilities it may not have sufficient staff to perform certain
tasks); Bryant v. Better Business Bureau of Greater Maryland, 923 F. Supp. 720,
735, 5 AD Cas. (BNA) 625, 634 (D. Md. 1996).
106. See 42 U.S.C. 12111(10)(B)
(1994); 29 C.F.R. 1630.2(p)(2) (1997); 29 C.F.R. pt. 1630 app. 1630.2(p) (1997); TAM,
supra note 46, at 3.9, 8 FEP Manual (BNA) 405:7005-07.
107. See Senate Report, supra
note 6, at 36; House Education and Labor Report, supra note 6, at 69. See also
29 C.F.R. pt. 1630 app. 1630.2(p) (1997).
108. See the Appendix on how to
obtain information about the tax credit and deductions.
109. See 29 C.F.R. pt. 1630
app. 1630.15(d) (1997).
110. Failure to transfer marginal
functions because of its negative impact on the morale of other employees also could
constitute disparate treatment when similar morale problems do not stop an employer from
reassigning tasks in other situations.
111. See Haschmann v. Time
Warner Entertainment Co., 151 F.3d 591, 600-02, 8 AD Cas. (BNA) 692, 699-701 (7th Cir.
1998).
112. See Criado v. IBM,
145 F.3d 437, 444-45, 8 AD Cas. (BNA) 336, 341 (1st Cir. 1998).
113. The ADA's definition of undue
hardship does not include any consideration of a cost-benefit analysis. See 42
U.S.C. 12111(10) (1994); see also House Education and Labor Report, supra
note 6, at 69 ("[T]he committee wishes to make clear that the fact that an
accommodation is used by only one employee should not be used as a negative factor
counting in favor of a finding of undue hardship.").
Furthermore, the House of Representatives rejected a
cost-benefit approach by defeating an amendment which would have presumed undue hardship
if a reasonable accommodation cost more than 10% of the employee's annual salary. See
136 Cong. Rec. h1475 (1990), see also House Judiciary Report, supra note 6,
at 41; 29 C.F.R. pt. 1630 app. 1630.15(d) (1997).
Despite the statutory language and legislative history,
some courts have applied a cost-benefit analysis. See, e.g., Monette v.
Electronic Data Sys. Corp., 90 F.3d 1173, 1184 n.10, 5 AD Cas. (BNA) 1326, 1335 n.10
(6th Cir. 1996); Vande Zande v. Wisconsin Dep't of Admin., 44 F.3d 538, 543, 3 AD
Cas. (BNA) 1636, 1638-39 (7th Cir. 1995).
114. The current regulation governing
reassignment of federal employees states that Postal Service workers with disabilities
shall not be considered qualified for a reassignment to the extent that it would be
inconsistent with the terms of a collective bargaining agreement. See 29 C.F.R.
1614.203(g) (1997). This regulation does not state the applicable ADA non-discrimination
standard when there is a conflict between a collective bargaining agreement and the need
to provide a reassignment to an employee with a disability.
115. See 42 U.S.C. 12111(10)
(1994). Certain circuits have held that it is an undue hardship to provide a reasonable
accommodation when doing so will violate the seniority provisions of a collective
bargaining agreement. See Eckles v. Consolidated Rail Corp., 94 F.3d 1041,
1048, 5 AD Cas. (BNA) 1367, 1372 (7th Cir. 1996); Kralik v. Durbin, 130 F.3d 76,
83, 7 AD Cas. (BNA) 1040, 1045-46 (3d Cir. 1997). These decisions create a virtual per se
rule that the ADA does not mandate as a reasonable accommodation an action that infringes
on the seniority rights of another employee in a collective bargaining agreement. In the EEOC's
view, such a per se rule nullifies Congress' intent that undue hardship always be
determined on a case-by-case basis. See House Judiciary Report, supra note
6, at 42. Indeed, Congress believed employers could consider the terms of a collective
bargaining agreement as one factor, but not the determining factor, in assessing undue
hardship. See Senate Report, supra note 6, at 32; House Education and Labor
Report, supra note 6, at 63. Finally, both Eckles and Kralik rely
heavily upon pre-ADA Rehabilitation Act case law, despite the fact that Congress amended
that statute by incorporating the ADA's employment discrimination provisions. See
29 U.S.C. 791(g), 793(d), 794(d) (1994).
116. See 42 U.S.C. 12112(b)(2)
(1994); 29 C.F.R. 1630.6 (1997) (prohibiting an employer from participating in a
contractual relationship that has the effect of subjecting qualified applicants or
employees with disabilities to discrimination).
117. See 42 U.S.C. 12203(b)
(1994); 29 C.F.R. 1630.12(b) (1997).
118. For example, under Title III of
the ADA a private entity that owns a building in which goods and services are offered to
the public has an obligation, subject to certain limitations, to remove architectural
barriers so that people with disabilities have equal access to these goods and services.
42 U.S.C. 12182(b)(2)(A)(iv) (1994). Thus, the requested modification may be something
that the property owner should have done to comply with Title III. |
