Revisiting Reasonable Accommodation
Congress passed the ADA because they found that discrimination against people with disabilities was persistent “in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services.”
That’s quite a list – and it’s no accident that employment leads the pack. When the ADA was crafted and considered, getting people to work became a challenge to policy makers, a promise to society, and a rallying cry for people with disabilities and their families.
Promoting and facilitating equal opportunities in employment has long been at the forefront of America’s public policy, and reasonable accommodation is often at the heart of those opportunities for workers with disabilities.
What is Reasonable Accommodation?
Congress included in the ADA a list of several key items to define what it means to discriminate against a qualified applicant or employee with a disability. Discrimination can include:
- Not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity
- Denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant
The statute further defines many of the words and terms used to establish the obligation to provide reasonable accommodations, ranging from “impairment” to “undue hardship,” and the term “reasonable accommodation” itself.
Reasonable accommodation may include “making existing facilities used by employees readily accessible … job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.”
Subsequent regulations, stacks of guidance materials, and reams of court rulings have sometimes clarified and sometimes confused this seemingly simple concept – some workers with disabilities will need something a little different, and when it’s reasonable, employers should provide it.
Yet more than 20 years after the implementation of the ADA’s employment provisions, we still struggle with reasonable accommodation. Why? Some of the challenge lies in the very nature of disability and reasonable accommodation, which is individualized. Reasonable accommodation is based on a particular individual and his or her unique disability experience, in the context of a specific job in a certain workplace.
The Individualized Assessment and the Interactive Process
The U.S. Equal Employment Opportunity Commission (EEOC), the federal agency responsible for regulating the ADA’s employment provisions, stresses the importance of the individualized approach and the need for communication between employer and employee. Sometimes reasonable accommodation is simple – an individual has an obvious disability, she requests a specific accommodation which is clearly related to her disability, it seems plain that the accommodation will eliminate a barrier to employment, and it’s not a problem for the employer to put it into effect.
But sometimes the matter must be approached more methodically. It may not be clear that a person has a disability or how his specific request is related to his disability. Or he may ask for help but not know exactly what he needs; perhaps something about his disability or the workplace is new or has changed. Information may be needed from medical or rehabilitation professionals, technology specialists, workplace managers, or others. There may be many options to explore, ranging from simple adjustments in workplace schedules or procedures to the provision of equipment or assistive technologies.
Medical Information and Confidentiality
Medical information is an area that is often surrounded by uncertainty and confusion. Can an employer ask for medical information? If so, when, what kind, how much? When they get it, what can they do with it, what must they do with it? In these days of heightened concern about privacy, both individuals and employers (as well as medical professionals) are understandably wary, but in many cases employers do need medical information, and are entitled to get it.
When an employee requests an accommodation, and it is not apparent that the individual has a disability (and many disabilities are “hidden”), and/or the individual asks for something that doesn’t seem to be related to the disability, some verification or explanation is needed. An employer has the right to get limited medical information. The individual must cooperate in getting the appropriate information to the employer; this may involve producing documentation from a qualified medical provider, or giving permission for medical professionals to provide information or communicate with the employer.
The employer should get only information that is relevant to the matter at hand, and must maintain confidentiality by keeping the information separate from general personnel files and sharing it on a strict “need to know” basis. Often, workplace managers, equipment specialists, or others may need to be consulted during the reasonable accommodation process, but they usually don’t need to know the individual’s disability; they only need to know what the functional limitations and workplace barriers are so they can contribute to the employer’s decision-making process.
This process is the same whether the individual is an applicant, a new hire, or a long-time employee. A request for a reasonable accommodation for the application process (for example, an alternate method or extra time for taking a pre-employment test) is one of the few times an employer may be able to ask about disability or require medical information before a job offer is made.
Performance and Conduct Issues
Employers often struggle with issues related to performance and conduct standards in relation to employees with disabilities, but employees with disabilities can be held to the same legitimate standards as other employees.
Many employers have rules, particularly conduct rules, which are clearly legitimate and can easily be defended as “job related and consistent with business necessity.” Such standards often include prohibitions against destroying property, engaging in harassment or violence, or using illegal drugs in the workplace. Where these rules are applied consistently, they can be applied to workers with disabilities. Reasonable accommodations may be needed by some employees in order to comply with rules; reasonable accommodations are designed to enable workers to meet standards, not to avoid them.
Leave as Reasonable Accommodation
Granting time off as a reasonable accommodation is another area where confusion and contention has often surfaced. The EEOC’s position (and many courts have agreed), has always been that leave can be a form of reasonable accommodation. Leave might enable a worker to return to duty following disability-related medical treatment, recuperation, training, equipment repair, or a temporary workplace barrier (for example, building renovations that create a temporary problem for a worker with allergies).
An employee who is entitled to any type of leave, paid or unpaid, should generally be allowed to use it before considering whether additional unpaid leave is reasonable and will enable the individual to return to work. Employers don’t have to provide paid leave beyond what the employee would be entitled to if she didn’t have a disability.
Leave does not have to be granted forever, or even indefinitely, but employers should consider undue hardship in light of relevant factors, such as their ability to cover for an absent employee.
An individual cannot be penalized for using a reasonable accommodation, and leave is no different. When leave is provided as a reasonable accommodation, an individual can’t be subjected to disciplinary action, termination, or other adverse actions based on the time she was absent. The period of leave should be “factored out” of decisions related to things like quotas and performance standards, the same way a reasonable accommodation provided in the work site would be.
Employers can certainly explore and choose accommodation ideas that enable employees to remain in the workplace, or at least to continue working on some basis, as opposed to granting extended periods of leave. Part-time or gradual return-to-work strategies, flexible scheduling, and/or working from home (often called “telework” or “telecommuting”) are among options that may be suitable in some situations. These and other creative approaches can result in a win-win outcome for both employers and employees; undue hardship may be avoided and valuable workers retained, and individuals are able to maximize their employment potential while meeting their disability-related needs.
Benefits and Privileges
It is important to remember that in addition to the duty to provide reasonable accommodations to enable qualified workers with disabilities to apply for jobs and to perform the essential functions of their jobs once they are hired, employers may need to provide reasonable accommodations to ensure that employees with disabilities can enjoy the same “benefits and privileges” as their co-workers.
Benefits and privileges might include a variety of facilities or activities provided or sponsored by employers. Common spaces such as cafeterias, break rooms, or fitness facilities should be accessible to workers with disabilities who are entitled to use them. Activities such as training programs, staff meetings, or holiday parties should be available for employees who are eligible to attend them.
This is a publication of the Mid-Atlantic ADA Center funded by the National Institute on Disability and Rehabilitation Research of the U.S. Dept. of Ed. (Grant # H133A110017). The opinions contained in this publication are those of the grantee and do not necessarily reflect those of the Department of Education.
© 2014 TransCen, Inc.