The federal Equal Employment Opportunity Commission has released comprehensive guidelines designed to help its investigators analyze complaints-and help employers comply with their accommodation obligations-under the Americans with Disabilities Act. The new enforcement guide attempts to answer frequently asked employer questions on a range of topics-from how to handle medical verification of a disability to when you must reassign a disabled employee to a vacant position. The guidelines also clarify what’s long been a big area of confusion for employers: when you don’t have to offer an accommodation. Here are the highlights.
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No Formal Request Required
The ADA applies to all employers with 15 or more employees, and requires you to provide a reasonable accommodation to qualified workers with disabilities unless you can show it would cause an undue hardship. (California’s law is similar but applies if you have five or more workers.)
The guidelines make clear that your legal obligations kick in even if an employee has not made a formal accommodation request. Any time a person indicates that a work adjustment may be needed for a medical condition-regardless of whether the words “ADA” or “reasonable accommodation” are used-you are on notice that an accommodation might be required, and you should begin discussing the issue with the employee.
Employer Can Choose
You’re not obligated to provide the exact accommodation the employee wants if you can offer an alternative. If two accommodations are possible and one is more costly or difficult to provide than the other, you can choose the simpler or less expensive one if it’s equally effective.
Requesting Documentation
When the extent of an employee’s disability or need for an accommodation is not obvious, you can ask for medical documentation. The guidelines clarify that you may inquire only about the disability and what type of accommodation might be needed-not about the person’s complete medical condition or history.
You can require the worker to go to a healthcare practitioner of your choice only if the documentation the employee submits doesn’t specify that there is a disability and doesn’t explain the need for a reasonable accommodation. But you must first give the person an opportunity to provide the missing information.
Family Leave And The ADA
An often troubling area for employers is how to handle leaves covered by both the ADA and the federal Family and Medical Leave Act. According to the guidelines, you should consider the eligible employee’s rights under each law separately before deciding what to do. For example, an employee who needs 13 weeks of leave because of a disability would be entitled to take a maximum of 12 weeks of family leave. But because the worker is also covered by the ADA, you would have to grant the person the 13th week of leave as an accommodation-unless you could show it would be an undue hardship.
Reassignment To A Vacant Position
You need to consider reassignment to a vacant position when no other accommodations would allow the person to perform their current job. Although you’re only required to place the employee in a job the person is qualified to perform, the EEOC says the disabled worker does not have to compete for the opening or be the best qualified applicant. Therefore you might have to give the open position to an average-performing disabled employee over a nondisabled worker with a better performance record.
Changing Personnel Policies
Employers may also have to bend their workplace policies to accommodate disabled workers. For example, if a diabetic employee needs to eat periodically while working, you would probably have to allow it even if your policies prohibit eating or drinking at workstations. Or you might have to modify your leave policies to allow a disabled employee to take more time off than other workers.
What You Don’t Have To Do
The guidelines make clear there are certain measures that you are not required to take to accommodate a disabled worker. These include eliminating a primary job responsibility; lowering production standards; providing personal use items such as eyeglasses, wheelchairs or hearing aids; and excusing a violation of a uniformly applied rule of conduct. This means you can discipline an employee with a disability for misconduct just as you would an employee without a disability.
Undue Hardship
You also don’t have to provide an accommodation that would be an undue hardship. There’s no one-size-fits-all test for deciding whether something would create an undue hardship on you. But the guidelines say you should consider cost, the accommodation’s impact on your business, your overall financial resources and the size and nature of your organization.
Union Agreements
You can’t automatically claim undue hardship just because a proposed accommodation would violate a collective bargaining agreement. If no other accommodation is available, the EEOC says you must negotiate with the union to create an exception to the contract. But if an accommodation would severely burden other workers-for example, reassigning a disabled worker to a job in violation of an established seniority system-the accommodation might not be required.
For More Information
The EEOC enforcement guide, “Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act,” is available free by calling (800) 669-3362 or on the Web at the EEOC web site.