The federal Equal Employment Opportunity Commission has updated its enforcement guidance concerning reasonable accommodation and undue hardship under the Americans with Disabilities Act. The revisions stem from a recent U.S. Supreme Court ruling that it is unreasonable for an employer to have to reassign a disabled employee if doing so would violate a seniority system, unless there are special circumstances. We’ll point out the highlights of the revised guidelines.
When Is an Accommodation Reasonable?
Under the original guidelines, employers determined whether an accommodation was reasonable by analyzing how effectively it enabled the disabled employee to perform the essential job functions. Now, the EEOC says that you must also look at whether the accommodation is feasible or plausible for an ordinary employer.
400+ pages of state-specific, easy-read reference materials at your fingertips—fully updated! Check out the Guide to Employment Law for California Employers and get up to speed on everything you need to know.
Here are some examples the agency cited of accommodations that are considered reasonable:
- Providing a stool for a cashier who easily becomes fatigued because of lupus is reasonable because it removes a workplace requirement to stand when the job can be performed just as effectively sitting down. This accommodation is effective because it addresses the employee’s fatigue and enables the person to perform their job.
- In case of a cleaning crew member whose psychiatric disability makes it difficult to adjust to changes in routine, excusing the person from having to participate in the crew’s monthly rotation to different floors of the building is a reasonable way to handle the employee’s problem. It is also effective because it enables the employee to perform his cleaning duties.
Other examples of reasonable accommodations 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.
Unreasonable Modifications
Examples of modifications or adjustments that typically are not considered reasonable accommodations include eliminating an essential job function; lowering production standards (although an employer may have to provide a reasonable accommodation to enable an employee with a disability to meet the production standard); and providing personal-use items needed to perform daily activities both on and off the job, such as a prosthetic limb, a wheelchair, eyeglasses, hearing aids or similar devices if they are also needed off the job.
Conflicts with Seniority System
The revised guidance also reflects the U.S. Supreme Court’s holding that it is unreasonable to reassign an employee with a disability if doing so would violate the seniority system’s rules. This is true whether the seniority system is collectively bargained or management imposed.
But, says the EEOC, it may be reasonable to reassign an employee in violation of a seniority system if there are special circumstances that undermine employees’ expectations of consistent, uniform treatment under the seniority system. For example, if an employer can alter the seniority system unilaterally and has done so fairly frequently, one more exception for a disabled employee won’t make much difference. Or if the seniority system itself contains exceptions or procedures for making exceptions, one exception for a disabled worker is unlikely to matter.
Burdens of Proof
The updated guidelines make it clear that when an employee claims an employer violated the ADA by not providing a reasonable accommodation, the employee must prove that the requested accommodation was reasonable. Then, the employer has an opportunity to demonstrate that it didn’t have to provide the accommodation because it would have caused an undue hardship. Note that the employer must still engage in an interactive process with the worker who requests an accommodation to obtain information needed to make an informed decision about whether there is an appropriate accommodation.