"Reasonable Accommodations" Under the ADA

The Americans with Disabilities Act ("ADA") prohibits discrimination in the workplace based on disabilities (physical or mental). The employer has a duty, in fact, to provide its employees and applicants with reasonable accommodations to be able to perform a job's essential job functions.

A failure to provide such reasonable accommodations is unlawful. Once a qualified individual with a disability has requested a reasonable accommodation (or in many instances if the employer knows an accommodation may be required), the employer must make a reasonable effort to determine whether an accommodation should be made and if so what that should be.

What is an essential job function? Simply stated, it is the basic tasks required to do the job. In considering each "function" of the job to determine whether that function is "essential," employers weigh factors such as:

• The job function specifics.
• How important is the function to getting the job done?
• Can many or few employees available "on the job" perform this function?
• How often is this function performed by the employee (i.e., percentage of time spent)?
• What will happen if this function is not performed?
• Is this function required within similar positions, or not?
• What level of expertise, if any, is required for this position?

Keep in mind that these factors may lead to very deep and detailed analysis of the job and the employee, who may or may not be entitled to an accommodation. For instance, it has been held that even seldomly performed job duties can be essential functions under the ADA (a prison guard's ability to physically restrain inmates is essential even though the guard is rarely called on to do this). It has also been held that essential functions of a job are not limited to the particular assignment of the employee -- rather, they apply to the broader duties of the employee's job description. (I hope all of our readers have job descriptions for each of their employees -- it helps legally, and strategically it is a very important aspect of your organization's "human resources" management.)

Okay, you say, but if I need to provide a "reasonable accommodation," what is it that I need to do? Reasonable accommodations may include:

• job restructuring
• leave
• modified or part-time schedule
• modified workplace policies
• reassignment

Reasonable accommodations are described by the Equal Employment Opportunity Commission at:
http://www.eeoc.gov/docs/accommodation.html#contents2

There are several modifications or adjustments that are not considered forms of reasonable accommodation. An employer does not have to eliminate an essential function, i.e., a fundamental duty of the position. This is because a person with a disability who is unable to perform the essential functions, with or without reasonable accommodation, is not a "qualified" individual with a disability within the meaning of the ADA. Nor is an employer required to lower production standards -- whether qualitative or quantitative -- that are applied uniformly to employees with and without disabilities. However, an employer may have to provide reasonable accommodation to enable an employee with a disability to meet the production standard. While an employer is not required to eliminate an essential function or lower a production standard, it may do so if it wishes.

An employer does not have to provide as reasonable accommodations any personal use items needed in accomplishing daily activities both on and off the job. Thus, an employer is not required to provide an employee with a prosthetic limb, a wheelchair, eyeglasses, hearing aid, or similar devices if they are also needed off the job. Furthermore, an employer is not required to provide personal use amenities, such as a hot pot or refrigerator, if those items are not provided to employees without disabilities. However, items that might otherwise be considered personal may be required as reasonable accommodations where they are specifically designed or required to meet job-related rather than personal needs.

What process works to figure this out when the issue is before you ("on your desk")? I have looked to the Federal government's Equal Employment Opportunity Commission (EEOC) Interpretative Guidance on the ADA regulations, which has suggested the following approach to identify and assess the reasonableness of accommodations: When a qualified individual with a disability has requested a reasonable accommodation to assist in the performance of a job, the employer, using a problem solving approach, should:

(1) analyze the particular job involved and determine its purpose and essential functions;

(2) consult with the individual with a disability to ascertain the precise job-related limitations imposed by the individual's disability and how those limitations could be overcome with a reasonable accommodation;

(3) in consultation with the individual to be accommodated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position; and

(4) consider the preference of the individual to be accommodated and select and implement the accommodation that is most appropriate for both the employee and the employer.

Following this or a similar approach is an excellent method to avoid disputes and limit exposure in this area. The employer is not obligated by law to accept the employee's or applicant's preference for an accommodation, or to even work with the person to analyze the situation. However, to invite the employee or applicant into the process is empowering and that leads to good relations as opposed to "bad feelings" (pronounced "litigation").

Between choices of accommodations, the employer may choose which will apply. So long as the choice made is a reasonable accommodation (not necessarily the best accommodation), the choice will be lawful. Also, importantly, an employee who doesn't agree to work with the employer on this analysis puts him or herself in a bad light. In this writer's opinion, the key to success in this delicate and complicated area of human resources management is to "always wear the white hat," even when by necessity taking a firm lawful position.

Do you always need to provide a reasonable accommodation? No. An accommodation will not be required under the ADA as reasonable if it would pose an "undue hardship." Under the ADA, the term "undue hardship" means an action requiring significant difficulty or expense, when considered in light of:

(1) the nature and cost of the accommodation needed under this chapter;

(2) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;

(3) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and

(4) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.

EEOC reg. Section 1630.2(p)(2)(v) adds this proposed fifth factor to the analysis: "The impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility's ability to conduct business. " As stated in the EEOC Interpretative Guidance regs: "[T]o demonstrate that the cost of an accommodation poses an undue hardship, an employer would have to show that the cost is undue as compared to the employer's budget. Simply comparing the cost of the accommodation to the salary of the individual with a disability in need of the accommodation will not suffice." Employers should act carefully in making their decisions on reasonable accommodations, and in deciding whether or not an accommodation is an undue burden. A "knee-jerk" decision that an accommodation is an "undue burden" can create significant exposure and cost a lot of money in or out of court. To see the kind of exposure we are discussing, see the settlements and awards listed by the EEOC at http://www.eeoc.gov/.

For greater detail in this area, see Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, located at http://www.eeoc.gov/docs/accommodation.html. Employees and applicants should invite themselves into the process if and when a request for reasonable accommodation is made. The stakes in these issues are very high, both financially to the employer and to the disabled employee's and applicant's right to work.

Two final suggestions:

(1) Have great human resources personnel and legal representatives who have the trust and faith of management and are allowed to do their jobs to protect the organization.

(2) Do not make rushed or rash decisions whenever an ADA issue presents itself -- take your time to understand the correct course of action.

Legal disclaimer (naturally): The above article does not constitute case-specific legal advice. Always consult your counsel before acting on legal issues such as those discussed above.