When and how must an employer determine reasonable accommodations that may be required for an individual with a disability?
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“First the employee has to have a disability, which means they’re substantially limited in a major life activity. If that’s the case, now as an employer we have to see if the employee needs a reasonable accommodation to help them do the essential functions of their job.” Jennifer Sandberg explained in a recent BLR webinar. This is the starting line, in essence. In this situation, the employer must undergo an interactive process with the employee to determine what reasonable accommodations might work.
That said, there is no single right answer as to how this works best. There are any number of impairments that may need to be accommodated, and even the same type of impairment may impact different individuals in different ways, and these individuals will also be doing different jobs. This is why it is essential to utilize the interactive process to determine the best outcome for each individual.
Reasonable Accommodation Tips
Here are some tips to getting the reasonable accommodation process right:
- Reasonable accommodations must be determined on a case-by-case basis.
- The employer is allowed to define the essential functions of the job. This is one thing you do have control over, and it is why your job descriptions are very important when it comes to ADA compliance and reasonable accommodation determination. Determining the essential functions is one of the first steps in the process because the accommodation will need to ensure that these functions can be performed.
- Reasonable accommodation requires an interactive process. “That’s just a fancy label, really, for talking to your employee.” Sandberg told us. It’s not, however, an excuse to get unnecessary details about the condition in question. Stick to information about how the employee is having difficulties doing the job and how the employer could improve the situation.
Reasonable Accommodation Considerations
Here are some examples of things employers might consider when looking at reasonable accommodation options:
- Changes to the job application process. “Remember, your obligation to disabled individuals and to provide reasonable accommodation doesn’t just start when someone becomes your employee. That obligation exists even at the application phase.” Sandberg advised.
- Modifications to the work environment – including how a job is performed, in some cases.
- Changes so that a disabled employee can enjoy equal benefits and privileges (e.g. ability to access lunch area). Additionally, in some jurisdictions, courts have found that the change does not necessarily have to relate to essential job functions, but instead to something that makes it easier to do the job, such as providing a parking space close to the entrance of the building.
Reasonable Accommodation Examples
Here are some examples of reasonable accommodations that employers have utilized. Bear in mind, since the reasonable accommodation process is individualized, this is only meant to be a thought-starter, not a comprehensive list:
- Job restructuring. Take a look at the essential functions (define them if you haven’t already) and determine whether any can be moved to another employee or transferred if it is not an undue hardship. (However, doing so is NOT a requirement for employers. Some employers opt for this option, depending on the circumstances, as it may be acceptable for some jobs.)
- Modified workplace policies such as the time the work day starts and ends.
- Reassignment to a vacant position. This option does not include creating a position that doesn’t exist, but if there is already an open position that the disabled employee is able to do, you could consider reassigning them to that role.
- Part time or modified work schedules.
- Leave of known duration, even if all other leave is exhausted. This must be within reason and managed properly.
Conversely, here are some things that employers are not required to consider as reasonable accommodations:
- Eliminating an essential function of the position
- Lowering uniformly applied production standards (whether qualitative or quantitative)
- Providing treatment or monitoring an employee’s condition
- Accommodating a propensity for violence
- Providing a stress-free working environment
- Providing a new boss
- Allowing work rules violations or misconduct
- Providing an indefinite leave of absence
- Tolerating erratic attendance
The employer does have to engage in the interactive process, but does not have to do something that poses an undue hardship. However, undue hardship is an extremely high threshold to meet under the law, Sandberg explained. Even if accommodation requested by the individual imposes an undue hardship, under the ADA the employer still has obligation to attempt to provide an alternative that is reasonable. They do not, however, have to provide an accommodation that disrupts the business, poses a direct threat to anyone, or makes coworkers work harder, longer, or more often.
Cost is also a consideration in determining whether a proposed accommodation would be considered an undue hardship, but that factor alone won’t result in the accommodation being deemed a hardship as quickly as many imagine.
For more information on reasonable accommodations, order the webinar recording of “ADA-Compliant Job Descriptions: Outlining Essential Functions to Avoid Disability Discrimination Entanglements.” To register for a future webinar, visit http://store.blr.com/events/webinars.
Jennifer Sandberg is a partner in the Atlanta office of Fisher & Phillips LLP. She provides counsel regarding the Americans with Disabilities Act, wage and hour issues, the Family and Medical Leave Act, harassment, discrimination, garnishment, drug testing, and other federal and state laws and regulations affecting employment.