What’s Reasonable for Disability Accommodation?

wheelchair-749985_1280Employers must comply with the Americans with Disabilities Act (ADA) and similar state laws sometimes wonder how far they have to go to accommodate a disabled applicant or employee.

The ADA defines accommodation as any change in the work or work environment which enables a disabled employee to perform the essential functions of a job.  Accommodations can range from improving physical or structural obstacles to easing rigid work schedules.

The federal law (and similar state laws protecting qualified disabled applicants and employees) requires private employers with 15 or more employees to make reasonable accommodations for the qualified disabled applicants and employees. (Similar state laws often apply the same or similar requirements to all, or nearly all, employers.)

The key questions for employers often are: What makes an accommodation reasonable? And what kinds of accommodations are reasonable?

Reasonable Accommodation: For purposes of complying with ADA (and similar state laws) reasonable accommodation is any change in the work environment or in the way a job is performed — that does not cause an undue hardship on the employer — that enables a qualified disabled applicant or employee to experience equal employment opportunities.

Employers can make changes in the job application process, the work environment, the way the job is usually done, and changes that enable the disabled employee to enjoy equal benefits and privileges of employment.

An accommodation is reasonable if it does not cause the employer undue hardship.  Undue hardship means the change would cause the employer significant difficulty or expense.  Undue hardship can mean the accommodation would cause financial difficulty, or the accommodation would be unduly extensive or disruptive, or the accommodation would fundamentally alter the nature or operation of the business or organization.

An employer cannot legally claim undue hardship simply because of employees’ and customers’ fears or prejudices, or because the reasonable accommodation might have a negative impact on employee morale.  The employer may claim undue hardship if the reasonable accommodation would be unduly disruptive to other employees’ ability to do their jobs.

Caution: An employer should proceed carefully before deciding an accommodation would be an undue hardship.  The employer should seek guidance from health care and HR professionals on making decisions involving accommodations or denial of accommodations.

Examples of Reasonable Accommodations

Following are examples of changes the Equal Employment Opportunity Commission (EEOC) consider reasonable:

  • Restructure the job. Restructuring the job can include: shifting responsibility to other employees for minor (non-essential) job tasks the disabled employee is unable to perform, altering when, and, or how a job task is performed.
  • Provide leave. Provide unpaid leave necessitated by an employee’s disability.  (The employer does not have to provide more paid leave to a covered disabled employee than provided to other employees.)
  • Modify a time schedule. Modify an employee’s schedule by adjusting arrival or departure times, by giving the disabled employee periodic breaks, by altering when certain job tasks are performed, by providing additional unpaid leave.
  • Modify a workplace policy. An example of modifying a workplace policy: Give a qualified disabled employee a modified attendance policy such as flexibility in the arrival and departure times from work.
  • Modify the workstation. Modify the work area for the disabled employee. An example: Lower a work surface (desk, computer station, or table) for an employee seated in a wheelchair.  Raise a workstation for an employee unable to remain seated for long periods.
  • Use a product or piece of equipment. Purchase a special product or piece of equipment making it possible for the disabled employee to perform the essential functions of the job.  An example: Purchase screen magnification software so an administrative secretary who is legally blind can use the computer to edit documents and maintain time and attendance records.
  • Provide a service. Obtain a service which enables the disabled employee to perform the essential functions of the job.  An example: A blind employee wants access to an instruction manual for an essential piece of equipment.  The accommodation is having the manual transcribed into Braille by a Braille transcriptionist.
  • Alternative placement. If the employer definitely cannot make reasonable accommodation so the applicant or employee can perform the essential functions of a job, the employer may place the individual in an alternate position in which the person can perform the essential job duties.

Steps to Take

When the employer has the responsibility to consider reasonable accommodation for a disabled applicant or employee, the Job Accommodation Network (JAN) suggests the employer take the following steps:

  1. If the disabled person is requesting accommodation, send the person to a doctor or health professional, with a job description which clearly defines the essential functions and essential qualifications for the job, to verify the need for accommodation.  (Note: A disabled person isn’t always physically disabled. Mentally and emotionally disabled persons also are covered under the ADA and similar state laws.)
  2. If the doctor or health professional verifies the need for accommodation, consult with the employee to determine the precise job-related limitations and how accommodation can overcome those limitations.
  3. Consider the accommodation preference of the disabled person and, if possible, implement the accommodation that is most appropriate for both the employee and the employer.

JAN is a service of the Office of Disability Employment Policy of the U.S. Department of Labor.  It’s website is www.jan.wvu.edu.  Detailed guidance on reasonable accommodation is available from its website.

Costs to Accommodate

The EEOC considers the following factors when determining what’s reasonable for costs of an accommodation: The nature and cost of the accommodation, the financial resources of the employer, the number of employees, the effect on expenses and resources of the company or organization, and the type of operation conducted in the workplace.

Protected Disabled Employees

The Americans with Disabilities Act gives protection to applicants and employees who have a disability or disabilities that substantially limit one or more major life activities. So not all disabled individuals are protected by the ADA.

First, they must be applying for work with or working for a private employer with 15 or more employees.

Second, they must have a disability or disabilities which substantially limit one or more major life activities.

So, what does this mean?  Major life activities include such activities as walking, seeing, and hearing.  Major life activities refer to such functions as caring for oneself, performing manual tasks, speaking, breathing, learning, sitting, standing, lifting, reaching and exercising cognitive functions.

Also, a person doesn’t actually have to be disabled to have protection under ADA.  This is because the law also protects individuals when an employer and/or coworkers regard them and treat them as though they have a disability.

The ADA (as amended by the 2008 ADA Amendments Act) broadly defines disability to include – not just a current, obvious disability – but also an “impairment that is episodic or in remission… if it would substantially limit a major life activity when active.”  The term disability also extends to persons regarded as having such an impairment.  An applicant or employee is regarded as having such an impairment if the “individual establishes that he or she has been subjected to an action prohibited under this act [the ADA] because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.”

The amended ADA defines major life activities broadly to include such activities as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, learning, reading, reaching, interacting with others.  Major life activities also include such major bodily functions as breathing, immune system function, digestive and bowel function, and bladder, musculo-skeletal, and brain functions.

Examples of disabilities covered under the expanded disability and major life activities definitions include epilepsy, hypertension, multiple sclerosis, asthma, diabetes, major depression, bipolar disorder, schizophrenia, and cancer.

ADA obligations apply to private employers with 15 or more employees.  Covered employers need to train supervisors to broadly extend ADA protection to applicants and employees.  Individuals must be evaluated according to their qualifications… not their disabilities.

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