EEOC ENFORCEMENT GUIDANCE: REASONABLE ACCOMMODATION AND UNDUE HARDSHIP UNDER THE AMERICANS WITH DISABILITIES ACT

Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act

ENFORCEMENT GUIDANCE: REASONABLE ACCOMMODATION AND UNDUE HARDSHIP UNDER THE AMERICANS WITH DISABILITIES ACT

INTRODUCTION

This Enforcement Guidance clarifies the rights and responsibilities of employers and individuals with disabilities regarding reasonable accommodation and undue hardship. Title I of the ADA requires an employer to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, except when such accommodation would cause an undue hardship. This Guidance sets forth an employer’s legal obligations regarding reasonable accommodation; however, employers may provide more than the law requires.

This Guidance examines what “reasonable accommodation” means and who is entitled to receive it. The Guidance addresses what constitutes a request for reasonable accommodation, the form and substance of the request, and an employer’s ability to ask questions and seek documentation after a request has been made.

The Guidance discusses reasonable accommodations applicable to the hiring process and to the benefits and privileges of employment. The Guidance also covers different types of reasonable accommodations related to job performance, including job restructuring, leave, modified or part-time schedules, modified workplace policies, and reassignment. Questions concerning the relationship between the ADA and the Family and Medical Leave Act (FMLA) are examined as they affect leave and modified schedules. Reassignment issues addressed include who is entitled to reassignment and the extent to which an employer must search for a vacant position. The Guidance also examines issues concerning the interplay between reasonable accommodations and conduct rules.

The final section of this Guidance discusses undue hardship, including when requests for schedule modifications and leave may be denied.

GENERAL PRINCIPLES

Reasonable Accommodation

Title I of the Americans with Disabilities Act of 1990 (the “ADA”)⁽¹⁾ requires an employer⁽²⁾ to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, unless to do so would cause undue hardship. “In general, an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.”⁽³⁾There are three categories of “reasonable accommodations”:

“(i) modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; or

(ii) modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or

(iii) modifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.”⁽⁴⁾

The duty to provide reasonable accommodation is a fundamental statutory requirement because of the nature of discrimination faced by individuals with disabilities. Although many individuals with disabilities can apply for and perform jobs without any reasonable accommodations, there are workplace barriers that keep others from performing jobs which they could do with some form of accommodation. These barriers may be physical obstacles (such as inaccessible facilities or equipment), or they may be procedures or rules (such as rules concerning when work is performed, when breaks are taken, or how essential or marginal functions are performed). Reasonable accommodation removes workplace barriers for individuals with disabilities.

Reasonable accommodation is available to qualified applicants and employees with disabilities.⁽⁵⁾ Reasonable accommodations must be provided to qualified employees regardless of whether they work part- time or full-time, or are considered “probationary.” Generally, the individual with a disability must inform the employer that an accommodation is needed.⁽⁶⁾

There are a number of possible reasonable accommodations that an employer may have to provide in connection with modifications to the work environment or adjustments in how and when a job is performed. These 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.⁽⁷⁾

A modification or adjustment is “reasonable” if it “seems reasonable on its face, i.e., ordinarily or in the run of cases;”⁽⁸⁾ this means it is “reasonable” if it appears to be “feasible” or “plausible.”⁽⁹⁾An accommodation also must be effective in meeting the needs of the individual.⁽¹⁰⁾ In the context of job performance, this means that a reasonable accommodation enables the individual to perform the essential functions of the position. Similarly, a reasonable accommodation enables an applicant with a disability to have an equal opportunity to participate in the application process and to be considered for a job. Finally, a reasonable accommodation allows an employee with a disability an equal opportunity to enjoy the benefits and privileges of employment that employees without disabilities enjoy.

Example A: An employee with a hearing disability must be able to contact the public by telephone. The employee proposes that he use a TTY⁽¹¹⁾ to call a relay service operator who can then place the telephone call and relay the conversation between the parties. This is “reasonable” because a TTY is a common device used to facilitate communication between hearing and hearing-impaired individuals. Moreover, it would be effective in enabling the employee to perform his job.

Example B: A cashier easily becomes fatigued because of lupus and, as a result, has difficulty making it through her shift. The employee requests a stool because sitting greatly reduces the fatigue. This accommodation is reasonable because it is a common-sense solution to remove a workplace barrier being required to stand when the job can be effectively performed sitting down. This “reasonable” accommodation is effective because it addresses the employee’s fatigue and enables her to perform her job.

Example C: A cleaning company rotates its staff to different floors on a monthly basis. One crew member has a psychiatric disability. While his mental illness does not affect his ability to perform the various cleaning functions, it does make it difficult to adjust to alterations in his daily routine. The employee has had significant difficulty adjusting to the monthly changes in floor assignments. He asks for a reasonable accommodation and proposes three options: staying on one floor permanently, staying on one floor for two months and then rotating, or allowing a transition period to adjust to a change in floor assignments. These accommodations are reasonable because they appear to be feasible solutions to this employee’s problems dealing with changes to his routine. They also appear to be effective because they would enable him to perform his cleaning duties.

There are several modifications or adjustments that are not considered forms of reasonable accommodation.⁽¹²⁾ 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,⁽¹³⁾ 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⁽¹⁴⁾ — 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 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 aids, 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.⁽¹⁵⁾

Undue Hardship

The only statutory limitation on an employer’s obligation to provide “reasonable accommodation” is that no such change or modification is required if it would cause “undue hardship” to the employer.⁽¹⁶⁾ “Undue hardship” means significant difficulty or expense and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation. Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business.⁽¹⁷⁾ An employer must assess on a case-by-case basis whether a particular reasonable accommodation would cause undue hardship. The ADA’s “undue hardship” standard is different from that applied by courts under Title VII of the Civil Rights Act of 1964 for religious accommodation.⁽¹⁸⁾

REQUESTING REASONABLE ACCOMMODATION

1. How must an individual request a reasonable accommodation?When an individual decides to request accommodation, the individual or his/her representative must let the employer know that s/he needs an adjustment or change at work for a reason related to a medical condition. To request accommodation, an individual may use “plain English” and need not mention the ADA or use the phrase “reasonable accommodation.”⁽¹⁹⁾

   Example A: An employee tells her supervisor, “I’m having trouble getting to work at my scheduled starting time because of medical treatments I’m undergoing.” This is a request for a reasonable accommodation.

   Example B: An employee tells his supervisor, “I need six weeks off to get treatment for a back problem.” This is a request for a reasonable accommodation.

   Example C: A new employee, who uses a wheelchair, informs the employer that her wheelchair cannot fit under the desk in her office. This is a request for reasonable accommodation.

   Example D: An employee tells his supervisor that he would like a new chair because his present one is uncomfortable. Although this is a request for a change at work, his statement is insufficient to put the employer on notice that he is requesting reasonable accommodation. He does not link his need for the new chair with a medical condition.

   While an individual with a disability may request a change due to a medical condition, this request does not necessarily mean that the employer is required to provide the change. A request for reasonable accommodation is the first step in an informal, interactive process between the individual and the employer. In some instances, before addressing the merits of the accommodation request, the employer needs to determine if the individual’s medical condition meets the ADA definition of “disability,”⁽²⁰⁾ a prerequisite for the individual to be entitled to a reasonable accommodation.

2. May someone other than the individual with a disability request a reasonable accommodation on behalf of the individual?Yes, a family member, friend, health professional, or other representative may request a reasonable accommodation on behalf of an individual with a disability.⁽²¹⁾ Of course, the individual with a disability may refuse to accept an accommodation that is not needed.

   Example A: An employee’s spouse phones the employee’s supervisor on Monday morning to inform her that the employee had a medical emergency due to multiple sclerosis, needed to be hospitalized, and thus requires time off. This discussion constitutes a request for reasonable accommodation.

   Example B: An employee has been out of work for six months with a workers’ compensation injury. The employee’s doctor sends the employer a letter, stating that the employee is released to return to work, but with certain work restrictions. (Alternatively, the letter may state that the employee is released to return to a light duty position.) The letter constitutes a request for reasonable accommodation.

3. Do requests for reasonable accommodation need to be in writing?No. Requests for reasonable accommodation do not need to be in writing. Individuals may request accommodations in conversation or may use any other mode of communication.⁽²²⁾An employer may choose to write a memorandum or letter confirming the individual’s request. Alternatively, an employer may ask the individual to fill out a form or submit the request in written form, but the employer cannot ignore the initial request. An employer also may request reasonable documentation that the individual has an ADA disability and needs a reasonable accommodation. (See Question 6).
4. When should an individual with a disability request a reasonable accommodation?An individual with a disability may request a reasonable accommodation at any time during the application process or during the period of employment. The ADA does not preclude an employee with a disability from requesting a reasonable accommodation because s/he did not ask for one when applying for a job or after receiving a job offer. Rather, an individual with a disability should request a reasonable accommodation when s/he knows that there is a workplace barrier that is preventing him/her, due to a disability, from effectively competing for a position, performing a job, or gaining equal access to a benefit of employment.⁽²³⁾ As a practical matter, it may be in an employee’s interest to request a reasonable accommodation before performance suffers or conduct problems occur.
5. What must an employer do after receiving a request for reasonable accommodation?The employer and the individual with a disability should engage in an informal process to clarify what the individual needs and identify the appropriate reasonable accommodation.⁽²⁴⁾ The employer may ask the individual relevant questions that will enable it to make an informed decision about the request. This includes asking what type of reasonable accommodation is needed.⁽²⁵⁾The exact nature of the dialogue will vary. In many instances, both the disability and the type of accommodation required will be obvious, and thus there may be little or no need to engage in any discussion. In other situations, the employer may need to ask questions concerning the nature of the disability and the individual’s functional limitations in order to identify an effective accommodation. While the individual with a disability does not have to be able to specify the precise accommodation, s/he does need to describe the problems posed by the workplace barrier. Additionally, suggestions from the individual with a disability may assist the employer in determining the type of reasonable accommodation to provide. Where the individual or the employer are not familiar with possible accommodations, there are extensive public and private resources to help the employer identify reasonable accommodations once the specific limitations and workplace barriers have been ascertained.⁽²⁶⁾
6. May an employer ask an individual for documentation when the individual requests reasonable accommodation?Yes. When the disability and/or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about his/her disability and functional limitations. ⁽²⁷⁾ The employer is entitled to know that the individual has a covered disability for which s/he needs a reasonable accommodation.Reasonable documentation means that the employer may require only the documentation that is needed to establish that a person has an ADA disability, and that the disability necessitates a reasonable accommodation. Thus, an employer, in response to a request for reasonable accommodation, cannot ask for documentation that is unrelated to determining the existence of a disability and the necessity for an accommodation. This means that in most situations an employer cannot request a person’s complete medical records because they are likely to contain information unrelated to the disability at issue and the need for accommodation. If an individual has more than one disability, an employer can request information pertaining only to the disability that requires a reasonable accommodation.An employer may require that the documentation about the disability and the functional limitations come from an appropriate health care or rehabilitation professional. The appropriate professional in any particular situation will depend on the disability and the type of functional limitation it imposes. Appropriate professionals include, but are not limited to, doctors (including psychiatrists), psychologists, nurses, physical therapists, occupational therapists, speech therapists, vocational rehabilitation specialists, and licensed mental health professionals.

   In requesting documentation, employers should specify what types of information they are seeking regarding the disability, its functional limitations, and the need for reasonable accommodation. The individual can be asked to sign a limited release allowing the employer to submit a list of specific questions to the health care or vocational professional.⁽²⁸⁾

   As an alternative to requesting documentation, an employer may simply discuss with the person the nature of his/her disability and functional limitations. It would be useful for the employer to make clear to the individual why it is requesting information, i.e., to verify the existence of an ADA disability and the need for a reasonable accommodation.

   Example A: An employee says to an employer, “I’m having trouble reaching tools because of my shoulder injury.” The employer may ask the employee for documentation describing the impairment; the nature, severity, and duration of the impairment; the activity or activities that the impairment limits; and the extent to which the impairment limits the employee’s ability to perform the activity or activities (i.e., the employer is seeking information as to whether the employee has an ADA disability).

   Example B: A marketing employee has a severe learning disability. He attends numerous meetings to plan marketing strategies. In order to remember what is discussed at these meetings he must take detailed notes but, due to his disability, he has great difficulty writing. The employee tells his supervisor about his disability and requests a laptop computer to use in the meetings. Since neither the disability nor the need for accommodation are obvious, the supervisor may ask the employee for reasonable documentation about his impairment; the nature, severity, and duration of the impairment; the activity or activities that the impairment limits; and the extent to which the impairment limits the employee’s ability to perform the activity or activities. The employer also may ask why the disability necessitates use of a laptop computer (or any other type of reasonable accommodation, such as a tape recorder) to help the employee retain the information from the meetings.⁽²⁹⁾

   Example C: An employee’s spouse phones the employee’s supervisor on Monday morning to inform her that the employee had a medical emergency due to multiple sclerosis, needed to be hospitalized, and thus requires time off. The supervisor can ask the spouse to send in documentation from the employee’s treating physician that confirms that the hospitalization was related to the multiple sclerosis and provides information on how long an absence may be required from work.⁽³⁰⁾

   If an individual’s disability or need for reasonable accommodation is not obvious, and s/he refuses to provide the reasonable documentation requested by the employer, then s/he is not entitled to reasonable accommodation.⁽³¹⁾ On the other hand, failure by the employer to initiate or participate in an informal dialogue with the individual after receiving a request for reasonable accommodation could result in liability for failure to provide a reasonable accommodation.⁽³²⁾

7. May an employer require an individual to go to a health care professional of the employer’s (rather than the employee’s) choice for purposes of documenting need for accommodation and disability?The ADA does not prevent an employer from requiring an individual to go to an appropriate health professional of the employer’s choice if the individual provides insufficient information from his/her treating physician (or other health care professional) to substantiate that s/he has an ADA disability and needs a reasonable accommodation. However, if an individual provides insufficient documentation in response to the employer’s initial request, the employer should explain why the documentation is insufficient and allow the individual an opportunity to provide the missing information in a timely manner. Documentation is insufficient if it does not specify the existence of an ADA disability and explain the need for reasonable accommodation.⁽³³⁾Any medical examination conducted by the employer’s health professional must be job-related and consistent with business necessity. This means that the examination must be limited to determining the existence of an ADA disability and the functional limitations that require reasonable accommodation.⁽³⁴⁾If an employer requires an employee to go to a health professional of the employer’s choice, the employer must pay all costs associated with the visit(s).
8. Are there situations in which an employer cannot ask for documentation in response to a request for reasonable accommodation?Yes. An employer cannot ask for documentation when: (1) both the disability and the need for reasonable accommodation are obvious, or (2) the individual has already provided the employer with sufficient information to substantiate that s/he has an ADA disability and needs the reasonable accommodation requested.

   Example A: An employee brings a note from her treating physician explaining that she has diabetes and that, as a result, she must test her blood sugar several times a day to ensure that her insulin level is safe in order to avoid a hyperglycemic reaction. The note explains that a hyperglycemic reaction can include extreme thirst, heavy breathing, drowsiness, and flushed skin, and eventually would result in unconsciousness. Depending on the results of the blood test, the employee might have to take insulin. The note requests that the employee be allowed three or four 10-minute breaks each day to test her blood, and if necessary, to take insulin. The doctor’s note constitutes sufficient documentation that the person has an ADA disability because it describes a substantially limiting impairment and the reasonable accommodation needed as a result. The employer cannot ask for additional documentation.

   Example B: One year ago, an employer learned that an employee had bipolar disorder after he requested a reasonable accommodation. The documentation provided at that time from the employee’s psychiatrist indicated that this was a permanent condition which would always involve periods in which the disability would remit and then intensify. The psychiatrist’s letter explained that during periods when the condition flared up, the person’s manic moods or depressive episodes could be severe enough to create serious problems for the individual in caring for himself or working, and that medication controlled the frequency and severity of these episodes.

   Now, one year later, the employee again requests a reasonable accommodation related to his bipolar disorder. Under these facts, the employer may ask for reasonable documentation on the need for the accommodation (if the need is not obvious), but it cannot ask for documentation that the person has an ADA disability. The medical information provided one year ago established the existence of a long-term impairment that substantially limits a major life activity.

   Example C: An employee gives her employer a letter from her doctor, stating that the employee has asthma and needs the employer to provide her with an air filter. This letter contains insufficient information as to whether the asthma is an ADA disability because it does not provide any information as to its severity (i.e., whether it substantially limits a major life activity). Furthermore, the letter does not identify precisely what problem exists in the workplace that requires an air filter or any other reasonable accommodation. Therefore, the employer can request additional documentation.

9. Is an employer required to provide the reasonable accommodation that the individual wants?The employer may choose among reasonable accommodations as long as the chosen accommodation is effective.⁽³⁵⁾ Thus, as part of the interactive process, the employer may offer alternative suggestions for reasonable accommodations and discuss their effectiveness in removing the workplace barrier that is impeding the individual with a disability.If there are two possible reasonable accommodations, and one costs more or is more burdensome than the other, the employer may choose the less expensive or burdensome accommodation as long as it is effective (i.e., it would remove a workplace barrier, thereby providing the individual with an equal opportunity to apply for a position, to perform the essential functions of a position, or to gain equal access to a benefit or privilege of employment). Similarly, when there are two or more effective accommodations, the employer may choose the one that is easier to provide. In either situation, the employer does not have to show that it is an undue hardship to provide the more expensive or more difficult accommodation. If more than one accommodation is effective, “the preference of the individual with a disability should be given primary consideration. However, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations.”⁽³⁶⁾

   Example A: An employee with a severe learning disability has great difficulty reading. His supervisor sends him many detailed memoranda which he often has trouble understanding. However, he has no difficulty understanding oral communication. The employee requests that the employer install a computer with speech output and that his supervisor send all memoranda through electronic mail which the computer can then read to him. The supervisor asks whether a tape recorded message would accomplish the same objective and the employee agrees that it would. Since both accommodations are effective, the employer may choose to provide the supervisor and employee with a tape recorder so that the supervisor can record her memoranda and the employee can listen to them.

   Example B: An attorney with a severe vision disability requests that her employer provide someone to read printed materials that she needs to review daily. The attorney explains that a reader enables her to review substantial amounts of written materials in an efficient manner. Believing that this reasonable accommodation would be too costly, the employer instead provides the attorney with a device that allows her to magnify print so that she can read it herself. The attorney can read print using this device, but with such great difficulty it significantly slows down her ability to review written materials. The magnifying device is ineffective as a reasonable accommodation because it does not provide the attorney with an equal opportunity to attain the same level of performance as her colleagues. Without an equal opportunity to attain the same level of performance, this attorney is denied an equal opportunity to compete for promotions. In this instance, failure to provide the reader, absent undue hardship, would violate the ADA.

10. How quickly must an employer respond to a request for reasonable accommodation?An employer should respond expeditiously to a request for reasonable accommodation. If the employer and the individual with a disability need to engage in an interactive process, this too should proceed as quickly as possible.⁽³⁷⁾ Similarly, the employer should act promptly to provide the reasonable accommodation. Unnecessary delays can result in a violation of the ADA.⁽³⁸⁾

    Example A: An employer provides parking for all employees. An employee who uses a wheelchair requests from his supervisor an accessible parking space, explaining that the spaces are so narrow that there is insufficient room for his van to extend the ramp that allows him to get in and out. The supervisor does not act on the request and does not forward it to someone with authority to respond. The employee makes a second request to the supervisor. Yet, two months after the initial request, nothing has been done. Although the supervisor never definitively denies the request, the lack of action under these circumstances amounts to a denial, and thus violates the ADA.

    Example B: An employee who is blind requests adaptive equipment for her computer as a reasonable accommodation. The employer must order this equipment and is informed that it will take three months to receive delivery. No other company sells the adaptive equipment the employee needs. The employer notifies the employee of the results of its investigation and that it has ordered the equipment. Although it will take three months to receive the equipment, the employer has moved as quickly as it can to obtain it and thus there is no ADA violation resulting from the delay. The employer and employee should determine what can be done so that the employee can perform his/her job as effectively as possible while waiting for the equipment.

11. May an employer require an individual with a disability to accept a reasonable accommodation that s/he does not want?No. An employer may not require a qualified individual with a disability to accept an accommodation. If, however, an employee needs a reasonable accommodation to perform an essential function or to eliminate a direct threat, and refuses to accept an effective accommodation, s/he may not be qualified to remain in the job.⁽³⁹⁾

REASONABLE ACCOMMODATION AND JOB APPLICANTS

1. May an employer ask whether a reasonable accommodation is needed when an applicant has not asked for one?An employer may tell applicants what the hiring process involves (e.g., an interview, timed written test, or job demonstration), and may ask applicants whether they will need a reasonable accommodation for this process.During the hiring process and before a conditional offer is made, an employer generally may not ask an applicant whether s/he needs a reasonable accommodation for the job, except when the employer knows that an applicant has a disability — either because it is obvious or the applicant has voluntarily disclosed the information — and could reasonably believe that the applicant will need a reasonable accommodation to perform specific job functions. If the applicant replies that s/he needs a reasonable accommodation, the employer may inquire as to what type. ⁽⁴⁰⁾After a conditional offer of employment is extended, an employer may inquire whether applicants will need reasonable accommodations related to anything connected with the job (i.e., job performance or access to benefits/privileges of the job) as long as all entering employees in the same job category are asked this question. Alternatively, an employer may ask a specific applicant if s/he needs a reasonable accommodation if the employer knows that this applicant has a disability — either because it is obvious or the applicant has voluntarily disclosed the information — and could reasonably believe that the applicant will need a reasonable accommodation. If the applicant replies that s/he needs a reasonable accommodation, the employer may inquire as to what type.⁽⁴¹⁾
2. Does an employer have to provide a reasonable accommodation to an applicant with a disability even if it believes that it will be unable to provide this individual with a reasonable accommodation on the job?Yes. An employer must provide a reasonable accommodation to a qualified applicant with a disability that will enable the individual to have an equal opportunity to participate in the application process and to be considered for a job (unless it can show undue hardship). Thus, individuals with disabilities who meet initial requirements to be considered for a job should not be excluded from the application process because the employer speculates, based on a request for reasonable accommodation for the application process, that it will be unable to provide the individual with reasonable accommodation to perform the job. In many instances, employers will be unable to determine whether an individual needs reasonable accommodation to perform a job based solely on a request for accommodation during the application process. And even if an individual will need reasonable accommodation to perform the job, it may not be the same type or degree of accommodation that is needed for the application process. Thus, an employer should assess the need for accommodations for the application process separately from those that may be needed to perform the job. ⁽⁴²⁾

   Example A: An employer is impressed with an applicant’s resume and contacts the individual to come in for an interview. The applicant, who is deaf, requests a sign language interpreter for the interview. The employer cancels the interview and refuses to consider further this applicant because it believes it would have to hire a full-time interpreter. The employer has violated the ADA. The employer should have proceeded with the interview, using a sign language interpreter (absent undue hardship), and at the interview inquired to what extent the individual would need a sign language interpreter to perform any essential functions requiring communication with other people.

   Example B: An individual who has paraplegia applies for a secretarial position. Because the office has two steps at the entrance, the employer arranges for the applicant to take a typing test, a requirement of the application process, at a different location. The applicant fails the test. The employer does not have to provide any further reasonable accommodations for this individual because she is no longer qualified to continue with the application process.

REASONABLE ACCOMMODATION RELATED TO THE BENEFITS AND PRIVILEGES OF EMPLOYMENT ⁽⁴³⁾

The ADA requires employers to provide reasonable accommodations so that employees with disabilities can enjoy the “benefits and privileges of employment” equal to those enjoyed by similarly-situated employees without disabilities. Benefits and privileges of employment include, but are not limited to, employer-sponsored: (1) training, (2) services (e.g., employee assistance programs (EAP’s), credit unions, cafeterias, lounges, gymnasiums, auditoriums, transportation), and (3) parties or other social functions (e.g., parties to celebrate retirements and birthdays, and company outings).⁽⁴⁴⁾If an employee with a disability needs a reasonable accommodation in order to gain access to, and have an equal opportunity to participate in, these benefits and privileges, then the employer must provide the accommodation unless it can show undue hardship.

1. Does an employer have to provide reasonable accommodation to enable an employee with a disability to have equal access to information communicated in the workplace to non-disabled employees?Yes. Employers provide information to employees through different means, including computers, bulletin boards, mailboxes, posters, and public address systems. Employers must ensure that employees with disabilities have access to information that is provided to other similarly-situated employees without disabilities, regardless of whether they need it to perform their jobs.

   Example A: An employee who is blind has adaptive equipment for his computer that integrates him into the network with other employees, thus allowing communication via electronic mail and access to the computer bulletin board. When the employer installs upgraded computer equipment, it must provide new adaptive equipment in order for the employee to be integrated into the new networks, absent undue hardship. Alternative methods of communication (e.g., sending written or telephone messages to the employee instead of electronic mail) are likely to be ineffective substitutes since electronic mail is used by every employee and there is no effective way to ensure that each one will always use alternative measures to ensure that the blind employee receives the same information that is being transmitted via computer.

   Example B: An employer authorizes the Human Resources Director to use a public address system to remind employees about special meetings and to make certain announcements. In order to make this information accessible to a deaf employee, the Human Resources Director arranges to send in advance an electronic mail message to the deaf employee conveying the information that will be broadcast. The Human Resources Director is the only person who uses the public address system; therefore, the employer can ensure that all public address messages are sent, via electronic mail, to the deaf employee. Thus, the employer is providing this employee with equal access to office communications.

2. Must an employer provide reasonable accommodation so that an employee may attend training programs?Yes. Employers must provide reasonable accommodation (e.g., sign language interpreters; written materials produced in alternative formats, such as braille, large print, or on audio- cassette) that will provide employees with disabilities with an equal opportunity to participate in employer-sponsored training, absent undue hardship. This obligation extends to in-house training, as well as to training provided by an outside entity. Similarly, the employer has an obligation to provide reasonable accommodation whether the training occurs on the employer’s premises or elsewhere.

   Example A: XYZ Corp. has signed a contract with Super Trainers, Inc., to provide mediation training at its facility to all of XYZ’s Human Resources staff. One staff member is blind and requests that materials be provided in braille. Super Trainers refuses to provide the materials in braille. XYZ maintains that it is the responsibility of Super Trainers and sees no reason why it should have to arrange and pay for the braille copy.

   Both XYZ (as an employer covered under Title I of the ADA) and Super Trainers (as a public accommodation covered under Title III of the ADA)⁽⁴⁵⁾ have obligations to provide materials in alternative formats. This fact, however, does not excuse either one from their respective obligations. If Super Trainers refuses to provide the braille version, despite its Title III obligations, XYZ still retains its obligation to provide it as a reasonable accommodation, absent undue hardship.

   Employers arranging with an outside entity to provide training may wish to avoid such problems by specifying in the contract who has the responsibility to provide appropriate reasonable accommodations. Similarly, employers should ensure that any offsite training will be held in an accessible facility if they have an employee who, because of a disability, requires such an accommodation.

   Example B: XYZ Corp. arranges for one of its employees to provide CPR training. This three-hour program is optional. A deaf employee wishes to take the training and requests a sign language interpreter. XYZ must provide the interpreter because the CPR training is a benefit that XYZ offers all employees, even though it is optional.

TYPES OF REASONABLE ACCOMMODATIONS RELATED TO JOB PERFORMANCE⁽⁴⁶⁾

Below are discussed certain types of reasonable accommodations related to job performance.

Job Restructuring

Job restructuring includes modifications such as:

• reallocating or redistributing marginal job functions that an employee is unable to perform because of a disability; and
• altering when and/or how a function, essential or marginal, is performed.⁽⁴⁷⁾

An employer never has to reallocate essential functions as a reasonable accommodation, but can do so if it wishes.

1. If, as a reasonable accommodation, an employer restructures an employee’s job to eliminate some marginal functions, may the employer require the employee to take on other marginal functions that s/he can perform?Yes. An employer may switch the marginal functions of two (or more) employees in order to restructure a job as a reasonable accommodation.

   Example: A cleaning crew works in an office building. One member of the crew wears a prosthetic leg which enables him to walk very well, but climbing steps is painful and difficult. Although he can perform his essential functions without problems, he cannot perform the marginal function of sweeping the steps located throughout the building. The marginal functions of a second crew member include cleaning the small kitchen in the employee’s lounge, which is something the first crew member can perform. The employer can switch the marginal functions performed by these two employees.

   Leave

   Permitting the use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation when necessitated by an employee’s disability.⁽⁴⁸⁾ An employer does not have to provide paid leave beyond that which is provided to similarly-situated employees. Employers should allow an employee with a disability to exhaust accrued paid leave first and then provide unpaid leave.⁽⁴⁹⁾ For example, if employees get 10 days of paid leave, and an employee with a disability needs 15 days of leave, the employer should allow the individual to use 10 days of paid leave and 5 days of unpaid leave.

   An employee with a disability may need leave for a number of reasons related to the disability, including, but not limited to:

   • obtaining medical treatment (e.g., surgery, psychotherapy, substance abuse treatment, or dialysis); rehabilitation services; or physical or occupational therapy;
   • recuperating from an illness or an episodic manifestation of the disability;
   • obtaining repairs on a wheelchair, accessible van, or prosthetic device;
   • avoiding temporary adverse conditions in the work environment (for example, an air-conditioning breakdown causing unusually warm temperatures that could seriously harm an employee with multiple sclerosis);
   • training a service animal (e.g., a guide dog); or
   • receiving training in the use of braille or to learn sign language.
2. May an employer apply a “no-fault” leave policy, under which employees are automatically terminated after they have been on leave for a certain period of time, to an employee with a disability who needs leave beyond the set period?No. If an employee with a disability needs additional unpaid leave as a reasonable accommodation, the employer must modify its “no-fault” leave policy to provide the employee with the additional leave, unless it can show that: (1) there is another effective accommodation that would enable the person to perform the essential functions of his/her position, or (2) granting additional leave would cause an undue hardship. Modifying workplace policies, including leave policies, is a form of reasonable accommodation.⁽⁵⁰⁾
3. Does an employer have to hold open an employee’s job as a reasonable accommodation?Yes. An employee with a disability who is granted leave as a reasonable accommodation is entitled to return to his/her same position unless the employer demonstrates that holding open the position would impose an undue hardship.⁽⁵¹⁾If an employer cannot hold a position open during the entire leave period without incurring undue hardship, the employer must consider whether it has a vacant, equivalent position for which the employee is qualified and to which the employee can be reassigned to continue his/her leave for a specific period of time and then, at the conclusion of the leave, can be returned to this new position.⁽⁵²⁾

   Example: An employee needs eight months of leave for treatment and recuperation related to a disability. The employer grants the request, but after four months the employer determines that it can no longer hold open the position for the remaining four months without incurring undue hardship. The employer must consider whether it has a vacant, equivalent position to which the employee can be reassigned for the remaining four months of leave, at the end of which time the employee would return to work in that new position. If an equivalent position is not available, the employer must look for a vacant position at a lower level. Continued leave is not required as a reasonable accommodation if a vacant position at a lower level is also unavailable.

4. Can an employer penalize an employee for work missed during leave taken as a reasonable accommodation?No. To do so would be retaliation for the employee’s use of a reasonable accommodation to which s/he is entitled under the law.⁽⁵³⁾ Moreover, such punishment would make the leave an ineffective accommodation, thus making an employer liable for failing to provide a reasonable accommodation.⁽⁵⁴⁾

   Example A: A salesperson took five months of leave as a reasonable accommodation. The company compares the sales records of all salespeople over a one-year period, and any employee whose sales fall more than 25% below the median sales performance of all employees is automatically terminated. The employer terminates the salesperson because she had fallen below the required performance standard. The company did not consider that the reason for her lower sales performance was her five-month leave of absence; nor did it assess her productivity during the period she did work (i.e., prorate her productivity).

   Penalizing the salesperson in this manner constitutes retaliation and a denial of reasonable accommodation.

   Example B: Company X is having a reduction-in-force. The company decides that any employee who has missed more than four weeks in the past year will be terminated. An employee took five weeks of leave for treatment of his disability. The company cannot count those five weeks in determining whether to terminate this employee.⁽⁵⁵⁾

5. When an employee requests leave as a reasonable accommodation, may an employer provide an accommodation that requires him/her to remain on the job instead?Yes, if the employer’s reasonable accommodation would be effective and eliminate the need for leave.⁽⁵⁶⁾ An employer need not provide an employee’s preferred accommodation as long as the employer provides an effective accommodation.⁽⁵⁷⁾ Accordingly, in lieu of providing leave, an employer may provide a reasonable accommodation that requires an employee to remain on the job (e.g., reallocation of marginal functions or temporary transfer) as long as it does not interfere with the employee’s ability to address his/her medical needs. The employer is obligated, however, to restore the employee’s full duties or to return the employee to his/her original position once s/he no longer needs the reasonable accommodation.

   Example A: An employee with emphysema requests ten weeks of leave for surgery and recuperation related to his disability. In discussing this request with the employer, the employee states that he could return to work after seven weeks if, during his first three weeks back, he could work part-time and eliminate two marginal functions that require lots of walking. If the employer provides these accommodations, then it can require the employee to return to work after seven weeks.

   Example B: An employee’s disability is getting more severe and her doctor recommends surgery to counteract some of the effects. After receiving the employee’s request for leave for the surgery, the employer proposes that it provide certain equipment which it believes will mitigate the effects of the disability and delay the need for leave to get surgery. The employer’s proposed accommodation is not effective because it interferes with the employee’s ability to get medical treatment.

6. How should an employer handle leave for an employee covered by both the ADA and the Family and Medical Leave Act (FMLA)?⁽⁵⁸⁾An employer should determine an employee’s rights under each statute separately, and then consider whether the two statutes overlap regarding the appropriate actions to take.⁽⁵⁹⁾Under the ADA, an employee who needs leave related to his/her disability is entitled to such leave if there is no other effective accommodation and the leave will not cause undue hardship. An employer must allow the individual to use any accrued paid leave first, but, if that is insufficient to cover the entire period, then the employer should grant unpaid leave. An employer must continue an employee’s health insurance benefits during his/her leave period only if it does so for other employees in a similar leave status. As for the employee’s position, the ADA requires that the employer hold it open while the employee is on leave unless it can show that doing so causes undue hardship. When the employee is ready to return to work, the employer must allow the individual to return to the same position (assuming that there was no undue hardship in holding it open) if the employee is still qualified (i.e., the employee can perform the essential functions of the position with or without reasonable accommodation).If it is an undue hardship under the ADA to hold open an employee’s position during a period of leave, or an employee is no longer qualified to return to his/her original position, then the employer must reassign the employee (absent undue hardship) to a vacant position for which s/he is qualified.

   Under the FMLA, an eligible employee is entitled to a maximum of 12 weeks of leave per 12 month period. The FMLA guarantees the right of the employee to return to the same position or to an equivalent one.⁽⁶⁰⁾ An employer must allow the individual to use any accrued paid leave first, but if that is insufficient to cover the entire period, then the employer should grant unpaid leave. The FMLA requires an employer to continue the employee’s health insurance coverage during the leave period, provided the employee pays his/her share of the premiums.

   Example A: An employee with an ADA disability needs 13 weeks of leave for treatment related to the disability. The employee is eligible under the FMLA for 12 weeks of leave (the maximum available), so this period of leave constitutes both FMLA leave and a reasonable accommodation. Under the FMLA, the employer could deny the employee the thirteenth week of leave. But, because the employee is also covered under the ADA, the employer cannot deny the request for the thirteenth week of leave unless it can show undue hardship. The employer may consider the impact on its operations caused by the initial 12-week absence, along with other undue hardship factors.⁽⁶¹⁾

   Example B: An employee with an ADA disability has taken 10 weeks of FMLA leave and is preparing to return to work. The employer wants to put her in an equivalent position rather than her original one. Although this is permissible under the FMLA, the ADA requires that the employer return the employee to her original position. Unless the employer can show that this would cause an undue hardship, or that the employee is no longer qualified for her original position (with or without reasonable accommodation), the employer must reinstate the employee to her original position.

   Example C: An employee with an ADA disability has taken 12 weeks of FMLA leave. He notifies his employer that he is ready to return to work, but he no longer is able to perform the essential functions of his position or an equivalent position. Under the FMLA, the employer could terminate his employment,⁽⁶²⁾ but under the ADA the employer must consider whether the employee could perform the essential functions with reasonable accommodation (e.g., additional leave, part-time schedule, job restructuring, or use of specialized equipment). If not, the ADA requires the employer to reassign the employee if there is a vacant position available for which he is qualified, with or without reasonable accommodation, and there is no undue hardship.

Modified or Part-Time Schedule

1. Must an employer allow an employee with a disability to work a modified or part-time schedule as a reasonable accommodation, absent undue hardship?Yes.⁽⁶³⁾ A modified schedule may involve adjusting arrival or departure times, providing periodic breaks, altering when certain functions are performed, allowing an employee to use accrued paid leave, or providing additional unpaid leave. An employer must provide a modified or part-time schedule when required as a reasonable accommodation, absent undue hardship, even if it does not provide such schedules for other employees.⁽⁶⁴⁾

   Example A: An employee with HIV infection must take medication on a strict schedule. The medication causes extreme nausea about one hour after ingestion, and generally lasts about 45 minutes. The employee asks that he be allowed to take a daily 45-minute break when the nausea occurs. The employer must grant this request absent undue hardship.

   For certain positions, the time during which an essential function is performed may be critical. This could affect whether an employer can grant a request to modify an employee’s schedule.⁽⁶⁵⁾ Employers should carefully assess whether modifying the hours could significantly disrupt their operations — that is, cause undue hardship — or whether the essential functions may be performed at different times with little or no impact on the operations or the ability of other employees to perform their jobs.

   If modifying an employee’s schedule poses an undue hardship, an employer must consider reassignment to a vacant position that would enable the employee to work during the hours requested. ⁽⁶⁶⁾

   Example B: A day care worker requests that she be allowed to change her hours from 7:00 a.m. – 3:00 p.m. to 10:00 a.m. – 6:00 p.m. because of her disability. The day care center is open from 7:00 a.m. – 7:00 p.m. and it will still have sufficient coverage at the beginning of the morning if it grants the change in hours. In this situation, the employer must provide the reasonable accommodation.

   Example C: An employee works for a morning newspaper, operating the printing presses which run between 10 p.m. and 3 a.m. Due to her disability, she needs to work in the daytime. The essential function of her position, operating the printing presses, requires that she work at night because the newspaper cannot be printed during the daytime hours. Since the employer cannot modify her hours, it must consider whether it can reassign her to a different position.

2. How should an employer handle requests for modified or part-time schedules for an employee covered by both the ADA and the Family and Medical Leave Act (FMLA)?⁽⁶⁷⁾An employer should determine an employee’s rights under each statute separately, and then consider whether the two statutes overlap regarding the appropriate actions to take.Under the ADA, an employee who needs a modified or part-time schedule because of his/her disability is entitled to such a schedule if there is no other effective accommodation and it will not cause undue hardship. If there is undue hardship, the employer must reassign the employee if there is a vacant position for which s/he is qualified and which would allow the employer to grant the modified or part-time schedule (absent undue hardship).⁽⁶⁸⁾An employee receiving a part-time schedule as a reasonable accommodation is entitled only to the benefits, including health insurance, that other part-time employees receive. Thus, if non- disabled part-time workers are not provided with health insurance, then the employer does not have to provide such coverage to an employee with a disability who is given a part-time schedule as a reasonable accommodation.Under the FMLA, an eligible employee is entitled to take leave intermittently or on a part-time basis, when medically necessary, until s/he has used up the equivalent of 12 workweeks in a 12- month period. When such leave is foreseeable based on planned medical treatment, an employer may require the employee to temporarily transfer (for the duration of the leave) to an available alternative position, with equivalent pay and benefits, for which the employee is qualified and which better suits his/her reduced hours.⁽⁶⁹⁾ An employer always must maintain the employee’s existing level of coverage under a group health plan during the period of FMLA leave, provided the employee pays his/her share of the premium.⁽⁷⁰⁾

   Example: An employee with an ADA disability requests that she be excused from work one day a week for the next six months because of her disability. If this employee is eligible for a modified schedule under the FMLA, the employer must provide the requested leave under that statute if it is medically necessary, even if the leave would be an undue hardship under the ADA.

Modified Workplace Policies

1. Is it a reasonable accommodation to modify a workplace policy?Yes. It is a reasonable accommodation to modify a workplace policy when necessitated by an individual’s disability-related limitations,⁽⁷¹⁾ absent undue hardship. But, reasonable accommodation only requires that the employer modify the policy for an employee who requires such action because of a disability; therefore, the employer may continue to apply the policy to all other employees.

   Example: An employer has a policy prohibiting employees from eating or drinking at their workstations. An employee with insulin-dependent diabetes explains to her employer that she may occasionally take too much insulin and, in order to avoid going into insulin shock, she must immediately eat a candy bar or drink fruit juice. The employee requests permission to keep such food at her workstation and to eat or drink when her insulin level necessitates. The employer must modify its policy to grant this request, absent undue hardship. Similarly, an employer might have to modify a policy to allow an employee with a disability to bring in a small refrigerator, or to use the employer’s refrigerator, to store medication that must be taken during working hours.

   Granting an employee time off from work or an adjusted work schedule as a reasonable accommodation may involve modifying leave or attendance procedures or policies. For example, it would be a reasonable accommodation to modify a policy requiring employees to schedule vacation time in advance if an otherwise qualified individual with a disability needed to use accrued vacation time on an unscheduled basis because of disability- related medical problems, barring undue hardship.⁽⁷²⁾Furthermore, an employer may be required to provide additional leave to an employee with a disability as a reasonable accommodation in spite of a “no-fault” leave policy, unless the provision of such leave would impose an undue hardship.⁽⁷³⁾

   In some instances, an employer’s refusal to modify a workplace policy, such as a leave or attendance policy, could constitute disparate treatment as well as a failure to provide a reasonable accommodation. For example, an employer may have a policy requiring employees to notify supervisors before 9:00 a.m. if they are unable to report to work. If an employer would excuse an employee from complying with this policy because of emergency hospitalization due to a car accident, then the employer must do the same thing when the emergency hospitalization is due to a disability.⁽⁷⁴⁾

Reassignment ⁽⁷⁵⁾

The ADA specifically lists “reassignment to a vacant position” as a form of reasonable accommodation.⁽⁷⁶⁾ This type of reasonable accommodation must be provided to an employee who, because of a disability, can no longer perform the essential functions of his/her current position, with or without reasonable accommodation, unless the employer can show that it would be an undue hardship.⁽⁷⁷⁾

An employee must be “qualified” for the new position. An employee is “qualified” for a position if s/he: (1) satisfies the requisite skill, experience, education, and other job-related requirements of the position, and (2) can perform the essential functions of the new position, with or without reasonable accommodation.⁽⁷⁸⁾ The employee does not need to be the best qualified individual for the position in order to obtain it as a reassignment.

There is no obligation for the employer to assist the individual to become qualified. Thus, the employer does not have to provide training so that the employee acquires necessary skills to take a job.⁽⁷⁹⁾ The employer, however, would have to provide an employee with a disability who is being reassigned with any training that is normally provided to anyone hired for or transferred to the position.

Example A: An employer is considering reassigning an employee with a disability to a position which requires the ability to speak Spanish in order to perform an essential function. The employee never learned Spanish and wants the employer to send him to a course to learn Spanish. The employer is not required to provide this training as part of the obligation to make a reassignment. Therefore, the employee is not qualified for this position.

Example B: An employer is considering reassigning an employee with a disability to a position in which she will contract for goods and services. The employee is qualified for the position. The employer has its own specialized rules regarding contracting that necessitate training all individuals hired for these positions. In this situation, the employer must provide the employee with this specialized training.

Before considering reassignment as a reasonable accommodation, employers should first consider those accommodations that would enable an employee to remain in his/her current position. Reassignment is the reasonable accommodation of last resort and is required only after it has been determined that: (1) there are no effective accommodations that will enable the employee to perform the essential functions of his/her current position, or (2) all other reasonable accommodations would impose an undue hardship.⁽⁸⁰⁾ However, if both the employer and the employee voluntarily agree that transfer is preferable to remaining in the current position with some form of reasonable accommodation, then the employer may transfer the employee.

“Vacant” means that the position is available when the employee asks for reasonable accommodation, or that the employer knows that it will become available within a reasonable amount of time. A “reasonable amount of time” should be determined on a case-by-case basis considering relevant facts, such as whether the employer, based on experience, can anticipate that an appropriate position will become vacant within a short period of time.⁽⁸¹⁾ A position is considered vacant even if an employer has posted a notice or announcement seeking applications for that position. The employer does not have to bump an employee from a job in order to create a vacancy; nor does it have to create a new position.⁽⁸²⁾

Example C: An employer is seeking a reassignment for an employee with a disability. There are no vacant positions today, but the employer has just learned that another employee resigned and that that position will become vacant in four weeks. The impending vacancy is equivalent to the position currently held by the employee with a disability. If the employee is qualified for that position, the employer must offer it to him.

Example D: An employer is seeking a reassignment for an employee with a disability. There are no vacant positions today, but the employer has just learned that an employee in an equivalent position plans to retire in six months. Although the employer knows that the employee with a disability is qualified for this position, the employer does not have to offer this position to her because six months is beyond a “reasonable amount of time.” (If, six months from now, the employer decides to advertise the position, it must allow the individual to apply for that position and give the application the consideration it deserves.)

The employer must reassign the individual to a vacant position that is equivalent in terms of pay, status, or other relevant factors (e.g., benefits, geographical location) if the employee is qualified for the position. If there is no vacant equivalent position, the employer must reassign the employee to a vacant lower level position for which the individual is qualified. Assuming there is more than one vacancy for which the employee is qualified, the employer must place the individual in the position that comes closest to the employee’s current position in terms of pay, status, etc.⁽⁸³⁾If it is unclear which position comes closest, the employer should consult with the employee about his/her preference before determining the position to which the employee will be reassigned. Reassignment does not include giving an employee a promotion. Thus, an employee must compete for any vacant position that would constitute a promotion.

1. Is a probationary employee entitled to reassignment?Employers cannot deny a reassignment to an employee solely because s/he is designated as “probationary.” An employee with a disability is eligible for reassignment to a new position, regardless of whether s/he is considered “probationary,” as long as the employee adequately performed the essential functions of the position, with or without reasonable accommodation, before the need for a reassignment arose.The longer the period of time in which an employee has adequately performed the essential functions, with or without reasonable accommodation, the more likely it is that reassignment is appropriate if the employee becomes unable to continue performing the essential functions of the current position due to a disability. If, however, the probationary employee has never adequately performed the essential functions, with or without reasonable accommodation, then s/he is not entitled to reassignment because s/he was never “qualified” for the original position. In this situation, the employee is similar to an applicant who applies for a job for which s/he is not qualified, and then requests reassignment. Applicants are not entitled to reassignment.

   Example A: An employer designates all new employees as “probationary” for one year. An employee has been working successfully for nine months when she becomes disabled in a car accident. The employee, due to her disability, is unable to continue performing the essential functions of her current position, with or without reasonable accommodation, and seeks a reassignment. She is entitled to a reassignment if there is a vacant position for which she is qualified and it would not pose an undue hardship.

   Example B: A probationary employee has been working two weeks, but has been unable to perform the essential functions of the job because of his disability. There are no reasonable accommodations that would permit the individual to perform the essential functions of the position, so the individual requests a reassignment. The employer does not have to provide a reassignment (even if there is a vacant position) because, as it turns out, the individual was never qualified — i.e., the individual was never able to perform the essential functions of the position, with or without reasonable accommodation, for which he was hired.

2. Must an employer offer reassignment as a reasonable accommodation if it does not allow any of its employees to transfer from one position to another?Yes. The ADA requires employers to provide reasonable accommodations to individuals with disabilities, including reassignment, even though they are not available to others. Therefore, an employer who does not normally transfer employees would still have to reassign an employee with a disability, unless it could show that the reassignment caused an undue hardship. And, if an employer has a policy prohibiting transfers, it would have to modify that policy in order to reassign an employee with a disability, unless it could show undue hardship.⁽⁸⁴⁾
3. Is an employer’s obligation to offer reassignment to a vacant position limited to those vacancies within an employee’s office, branch, agency, department, facility, personnel system (if the employer has more than a single personnel system), or geographical area?No. This is true even if the employer has a policy prohibiting transfers from one office, branch, agency, department, facility, personnel system, or geographical area to another. The ADA contains no language limiting the obligation to reassign only to positions within an office, branch, agency, etc.⁽⁸⁵⁾ Rather, the extent to which an employer must search for a vacant position will be an issue of undue hardship.⁽⁸⁶⁾If an employee is being reassigned to a different geographical area, the employee must pay for any relocation expenses unless the employer routinely pays such expenses when granting voluntary transfers to other employees.
4. Does an employer have to notify an employee with a disability about vacant positions, or is it the employee’s responsibility to learn what jobs are vacant?The employer is in the best position to know which jobs are vacant or will become vacant within a reasonable period of time.⁽⁸⁷⁾ In order to narrow the search for potential vacancies, the employer, as part of the interactive process, should ask the employee about his/her qualifications and interests. Based on this information, the employer is obligated to inform an employee about vacant positions for which s/he may be eligible as a reassignment. However, an employee should assist the employer in identifying appropriate vacancies to the extent that the employee has access to information about them. If the employer does not know whether the employee is qualified for a specific position, the employer can discuss with the employee his/her qualifications.⁽⁸⁸⁾An employer should proceed as expeditiously as possible in determining whether there are appropriate vacancies. The length of this process will vary depending on how quickly an employer can search for and identify whether an appropriate vacant position exists. For a very small employer, this process may take one day; for other employers this process may take several weeks.⁽⁸⁹⁾When an employer has completed its search, identified whether there are any vacancies (including any positions that will become vacant in a reasonable amount of time), notified the employee of the results, and either offered an appropriate vacancy to the employee or informed him/her that no appropriate vacancies are available, the employer will have fulfilled its obligation.
5. Does reassignment mean that the employee is permitted to compete for a vacant position?No. Reassignment means that the employee gets the vacant position if s/he is qualified for it. Otherwise, reassignment would be of little value and would not be implemented as Congress intended.⁽⁹⁰⁾
6. If an employee is reassigned to a lower level position, must an employer maintain his/her salary from the higher level position?No, unless the employer transfers employees without disabilities to lower level positions and maintains their original salaries.⁽⁹¹⁾
7. Must an employer provide a reassignment if it would violate a seniority system?Generally, it will be “unreasonable” to reassign an employee with a disability if doing so would violate the rules of a seniority system.⁽⁹²⁾ This is true both for collectively bargained seniority systems and those unilaterally imposed by management. Seniority systems governing job placement give employees expectations of consistent, uniform treatment expectations that would be undermined if employers had to make the type of individualized, case-by-case assessment required by the reasonable accommodation process.⁽⁹³⁾However, if there are “special circumstances” that “undermine the employees’ expectations of consistent, uniform treatment,” it may be a “reasonable accommodation,” absent undue hardship, to reassign an employee despite the existence of a seniority system. For example, “special circumstances” may exist where an employer retains the right to alter the seniority system unilaterally, and has exercised that right fairly frequently, thereby lowering employee expectations in the seniority system.⁽⁹⁴⁾In this circumstance, one more exception (i.e., providing the reassignment to an employee with a disability) may not make a difference.⁽⁹⁵⁾Alternatively, a seniority system may contain exceptions, such that one more exception is unlikely to matter.⁽⁹⁶⁾ Another possibility is that a seniority system might contain procedures for making exceptions, thus suggesting to employees that seniority does not automatically guarantee access to a specific job.

OTHER REASONABLE ACCOMMODATION ISSUES ⁽⁹⁷⁾

1. If an employer has provided one reasonable accommodation, does it have to provide additional reasonable accommodations requested by an individual with a disability?The duty to provide reasonable accommodation is an ongoing one.⁽⁹⁸⁾ Certain individuals require only one reasonable accommodation, while others may need more than one. Still others may need one reasonable accommodation for a period of time, and then at a later date, require another type of reasonable accommodation. If an individual requests multiple reasonable accommodations, s/he is entitled only to those accommodations that are necessitated by a disability and that will provide an equal employment opportunity.An employer must consider each request for reasonable accommodation and determine: (1) whether the accommodation is needed, (2) if needed, whether the accommodation would be effective, and (3) if effective, whether providing the reasonable accommodation would impose an undue hardship. If a reasonable accommodation turns out to be ineffective and the employee with a disability remains unable to perform an essential function, the employer must consider whether there would be an alternative reasonable accommodation that would not pose an undue hardship. If there is no alternative accommodation, then the employer must attempt to reassign the employee to a vacant position for which s/he is qualified, unless to do so would cause an undue hardship.
2. Does an employer have to change a person’s supervisor as a form of reasonable accommodation?No. An employer does not have to provide an employee with a new supervisor as a reasonable accommodation. Nothing in the ADA, however, prohibits an employer from doing so. Furthermore, although an employer is not required to change supervisors, the ADA may require that supervisory methods be altered as a form of reasonable accommodation.⁽⁹⁹⁾Also, an employee with a disability is protected from disability-based discrimination by a supervisor, including disability-based harassment.

   Example: A supervisor frequently schedules team meetings on a day’s notice often notifying staff in the afternoon that a meeting will be held on the following morning. An employee with a disability has missed several meetings because they have conflicted with previously-scheduled physical therapy sessions. The employee asks that the supervisor give her two to three days’ notice of team meetings so that, if necessary, she can reschedule the physical therapy sessions. Assuming no undue hardship would result, the supervisor must make this reasonable accommodation.

3. Does an employer have to allow an employee with a disability to work at home as a reasonable accommodation?An employer must modify its policy concerning where work is performed if such a change is needed as a reasonable accommodation, but only if this accommodation would be effective and would not cause an undue hardship.⁽¹⁰⁰⁾Whether this accommodation is effective will depend on whether the essential functions of the position can be performed at home. There are certain jobs in which the essential functions can only be performed at the work site — e.g., food server, cashier in a store. For such jobs, allowing an employee to work at home is not effective because it does not enable an employee to perform his/her essential functions. Certain considerations may be critical in determining whether a job can be effectively performed at home, including (but not limited to) the employer’s ability to adequately supervise the employee and the employee’s need to work with certain equipment or tools that cannot be replicated at home. In contrast, employees may be able to perform the essential functions of certain types of jobs at home (e.g., telemarketer, proofreader).⁽¹⁰¹⁾ For these types of jobs, an employer may deny a request to work at home if it can show that another accommodation would be effective or if working at home will cause undue hardship.
4. Must an employer withhold discipline or termination of an employee who, because of a disability, violated a conduct rule that is job-related for the position in question and consistent with business necessity?No. An employer never has to excuse a violation of a uniformly applied conduct rule that is job-related and consistent with business necessity. This means, for example, that an employer never has to tolerate or excuse violence, threats of violence, stealing, or destruction of property. An employer may discipline an employee with a disability for engaging in such misconduct if it would impose the same discipline on an employee without a disability.
5. Must an employer provide a reasonable accommodation for an employee with a disability who violated a conduct rule that is job- related for the position in question and consistent with business necessity?An employer must make reasonable accommodation to enable an otherwise qualified employee with a disability to meet such a conduct standard in the future, barring undue hardship, except where the punishment for the violation is termination.⁽¹⁰²⁾Since reasonable accommodation is always prospective, an employer is not required to excuse past misconduct even if it is the result of the individual’s disability.⁽¹⁰³⁾ Possible reasonable accommodations could include adjustments to starting times, specified breaks, and leave if these accommodations will enable an employee to comply with conduct rules.⁽¹⁰⁴⁾

   Example: An employee with major depression is often late for work because of medication side-effects that make him extremely groggy in the morning. His scheduled hours are 9:00 a.m. to 5:30 p.m., but he arrives at 9:00, 9:30, 10:00, or even 10:30 on any given day. His job responsibilities involve telephone contact with the company’s traveling sales representatives, who depend on him to answer urgent marketing questions and expedite special orders. The employer disciplines him for tardiness, stating that continued failure to arrive promptly during the next month will result in termination of his employment. The individual then explains that he was late because of a disability and needs to work on a later schedule. In this situation, the employer may discipline the employee because he violated a conduct standard addressing tardiness that is job-related for the position in question and consistent with business necessity. The employer, however, must consider reasonable accommodation, barring undue hardship, to enable this individual to meet this standard in the future. For example, if this individual can serve the company’s sales representatives by regularly working a schedule of 10:00 a.m. to 6:30 p.m., a reasonable accommodation would be to modify his schedule so that he is not required to report for work until 10:00 a.m.

6. Is it a reasonable accommodation to make sure that an employee takes medication as prescribed?No. Medication monitoring is not a reasonable accommodation. Employers have no obligation to monitor medication because doing so does not remove a workplace barrier. Similarly, an employer has no responsibility to monitor an employee’s medical treatment or ensure that s/he is receiving appropriate treatment because such treatment does not involve modifying workplace barriers.⁽¹⁰⁵⁾It may be a form of reasonable accommodation, however, to give an employee a break in order that s/he may take medication, or to grant leave so that an employee may obtain treatment.
7. Is an employer relieved of its obligation to provide reasonable accommodation for an employee with a disability who fails to take medication, to obtain medical treatment, or to use an assistive device (such as a hearing aid)?No. The ADA requires an employer to provide reasonable accommodation to remove workplace barriers, regardless of what effect medication, other medical treatment, or assistive devices may have on an employee’s ability to perform the job.⁽¹⁰⁶⁾However, if an employee with a disability, with or without reasonable accommodation, cannot perform the essential functions of the position or poses a direct threat in the absence of medication, treatment, or an assistive device, then s/he is unqualified.
8. Must an employer provide a reasonable accommodation that is needed because of the side effects of medication or treatment related to the disability, or because of symptoms or other medical conditions resulting from the underlying disability?Yes. The side effects caused by the medication that an employee must take because of the disability are limitations resulting from the disability. Reasonable accommodation extends to all limitations resulting from a disability.

   Example A: An employee with cancer undergoes chemotherapy twice a week, which causes her to be quite ill afterwards. The employee requests a modified schedule — leave for the two days a week of chemotherapy. The treatment will last six weeks. Unless it can show undue hardship, the employer must grant this request.

   Similarly, any symptoms or related medical conditions resulting from the disability that cause limitations may also require reasonable accommodation.⁽¹⁰⁷⁾

   Example B: An employee, as a result of insulin-dependent diabetes, has developed background retinopathy (a vision impairment). The employee, who already has provided documentation showing his diabetes is a disability, requests a device to enlarge the text on his computer screen. The employer can request documentation that the retinopathy is related to the diabetes but the employee does not have to show that the retinopathy is an independent disability under the ADA. Since the retinopathy is a consequence of the diabetes (an ADA disability), the request must be granted unless undue hardship can be shown.

9. Must an employer ask whether a reasonable accommodation is needed when an employee has not asked for one?Generally, no. As a general rule, the individual with a disability — who has the most knowledge about the need for reasonable accommodation — must inform the employer that an accommodation is needed.⁽¹⁰⁸⁾However, an employer should initiate the reasonable accommodation interactive process⁽¹⁰⁹⁾ without being asked if the employer: (1) knows that the employee has a disability, (2) knows, or has reason to know, that the employee is experiencing workplace problems because of the disability, and (3) knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation. If the individual with a disability states that s/he does not need a reasonable accommodation, the employer will have fulfilled its obligation.

   Example: An employee with mental retardation delivers messages at a law firm. He frequently mixes up messages for “R. Miller” and “T. Miller.” The employer knows about the disability, suspects that the performance problem is a result of the disability, and knows that this employee is unable to ask for a reasonable accommodation because of his mental retardation. The employer asks the employee about mixing up the two names and asks if it would be helpful to spell the first name of each person. When the employee says that would be better, the employer, as a reasonable accommodation, instructs the receptionist to write the full first name when messages are left for one of the Messrs. Miller.

10. May an employer ask whether a reasonable accommodation is needed when an employee with a disability has not asked for one?An employer may ask an employee with a known disability whether s/he needs a reasonable accommodation when it reasonably believes that the employee may need an accommodation. For example, an employer could ask a deaf employee who is being sent on a business trip if s/he needs reasonable accommodation. Or, if an employer is scheduling a luncheon at a restaurant and is uncertain about what questions it should ask to ensure that the restaurant is accessible for an employee who uses a wheelchair, the employer may first ask the employee. An employer also may ask an employee with a disability who is having performance or conduct problems if s/he needs reasonable accommodation.⁽¹¹⁰⁾
11. May an employer tell other employees that an individual is receiving a reasonable accommodation when employees ask questions about a coworker with a disability?No. An employer may not disclose that an employee is receiving a reasonable accommodation because this usually amounts to a disclosure that the individual has a disability. The ADA specifically prohibits the disclosure of medical information except in certain limited situations, which do not include disclosure to coworkers.⁽¹¹¹⁾An employer may certainly respond to a question from an employee about why a coworker is receiving what is perceived as “different” or “special” treatment by emphasizing its policy of assisting any employee who encounters difficulties in the workplace. The employer also may find it helpful to point out that many of the workplace issues encountered by employees are personal, and that, in these circumstances, it is the employer’s policy to respect employee privacy. An employer may be able to make this point effectively by reassuring the employee asking the question that his/her privacy would similarly be respected if s/he found it necessary to ask the employer for some kind of workplace change for personal reasons.Since responding to specific coworker questions may be difficult, employers might find it helpful before such questions are raised to provide all employees with information about various laws that require employers to meet certain employee needs (e.g., the ADA and the Family and Medical Leave Act), while also requiring them to protect the privacy of employees. In providing general ADA information to employees, an employer may wish to highlight the obligation to provide reasonable accommodation, including the interactive process and different types of reasonable accommodations, and the statute’s confidentiality protections. Such information could be delivered in orientation materials, employee handbooks, notices accompanying paystubs, and posted flyers. Employers may wish to explore these and other alternatives with unions because they too are bound by the ADA’s confidentiality provisions. Union meetings and bulletin boards may be further avenues for such educational efforts.

    As long as there is no coercion by an employer, an employee with a disability may voluntarily choose to disclose to coworkers his/her disability and/or the fact that s/he is receiving a reasonable accommodation.

UNDUE HARDSHIP ISSUES ⁽¹¹²⁾

An employer does not have to provide a reasonable accommodation that would cause an “undue hardship” to the employer. Generalized conclusions will not suffice to support a claim of undue hardship. Instead, undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense.⁽¹¹³⁾ A determination of undue hardship should be based on several factors, including:

• the nature and cost of the accommodation needed;
• the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility;
• the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity);
• the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer;
• the impact of the accommodation on the operation of the facility.⁽¹¹⁴⁾

The ADA’s legislative history indicates that Congress wanted employers to consider all possible sources of outside funding when assessing whether a particular accommodation would be too costly.⁽¹¹⁵⁾ Undue hardship is determined based on the net cost to the employer. Thus, an employer should determine whether funding is available from an outside source, such as a state rehabilitation agency, to pay for all or part of the accommodation.⁽¹¹⁶⁾ In addition, the employer should determine whether it is eligible for certain tax credits or deductions to offset the cost of the accommodation. Also, to the extent that a portion of the cost of an accommodation causes undue hardship, the employer should ask the individual with a disability if s/he will pay the difference.

If an employer determines that one particular reasonable accommodation will cause undue hardship, but a second type of reasonable accommodation will be effective and will not cause an undue hardship, then the employer must provide the second accommodation.

An employer cannot claim undue hardship based on employees’ (or customers’) fears or prejudices toward the individual’s disability.⁽¹¹⁷⁾ Nor can undue hardship be based on the fact that provision of a reasonable accommodation might have a negative impact on the morale of other employees. Employers, however, may be able to show undue hardship where provision of a reasonable accommodation would be unduly disruptive to other employees’s ability to work.

Example A: An employee with breast cancer is undergoing chemotherapy. As a consequence of the treatment, the employee is subject to fatigue and finds it difficult to keep up with her regular workload. So that she may focus her reduced energy on performing her essential functions, the employer transfers three of her marginal functions to another employee for the duration of the chemotherapy treatments. The second employee is unhappy at being given extra assignments, but the employer determines that the employee can absorb the new assignments with little effect on his ability to perform his own assignments in a timely manner. Since the employer cannot show significant disruption to its operation, there is no undue hardship.⁽¹¹⁸⁾

Example B: A convenience store clerk with multiple sclerosis requests that he be allowed to go from working full-time to part- time as a reasonable accommodation because of his disability. The store assigns two clerks per shift, and if the first clerk’s hours are reduced, the second clerk’s workload will increase significantly beyond his ability to handle his responsibilities. The store determines that such an arrangement will result in inadequate coverage to serve customers in a timely manner, keep the shelves stocked, and maintain store security. Thus, the employer can show undue hardship based on the significant disruption to its operations and, therefore, can refuse to reduce the employee’s hours. The employer, however, should explore whether any other reasonable accommodation will assist the store clerk without causing undue hardship.

1. Must an employer modify the work hours of an employee with a disability if doing so would prevent other employees from performing their jobs?No. If the result of modifying one employee’s work hours (or granting leave) is to prevent other employees from doing their jobs, then the significant disruption to the operations of the employer constitutes an undue hardship.

   Example A: A crane operator, due to his disability, requests an adjustment in his work schedule so that he starts work at 8:00 a.m. rather than 7:00 a.m., and finishes one hour later in the evening. The crane operator works with three other employees who cannot perform their jobs without the crane operator. As a result, if the employer grants this requested accommodation, it would have to require the other three workers to adjust their hours, find other work for them to do from 7:00 to 8:00, or have the workers do nothing. The ADA does not require the employer to take any of these actions because they all significantly disrupt the operations of the business. Thus, the employer can deny the requested accommodation, but should discuss with the employee if there are other possible accommodations that would not result in undue hardship.

   Example B: A computer programmer works with a group of people to develop new software. There are certain tasks that the entire group must perform together, but each person also has individual assignments. It is through habit, not necessity, that they have often worked together first thing in the morning.

   The programmer, due to her disability, requests an adjustment in her work schedule so that she works from 10:00 a.m. – 7:00 p.m. rather than 9:00 a.m. – 6:00 p.m. In this situation, the employer could grant the adjustment in hours because it would not significantly disrupt the operations of the business. The effect of the reasonable accommodation would be to alter when the group worked together and when they performed their individual assignments.

2. Can an employer deny a request for leave when an employee cannot provide a fixed date of return?Providing leave to an employee who is unable to provide a fixed date of return is a form of reasonable accommodation. However, if an employer is able to show that the lack of a fixed return date causes an undue hardship, then it can deny the leave. In certain circumstances, undue hardship will derive from the disruption to the operations of the entity that occurs because the employer can neither plan for the employee’s return nor permanently fill the position. If an employee cannot provide a fixed date of return, and an employer determines that it can grant such leave at that time without causing undue hardship, the employer has the right to require, as part of the interactive process, that the employee provide periodic updates on his/her condition and possible date of return. After receiving these updates, employers may reevaluate whether continued leave constitutes an undue hardship.In certain situations, an employee may be able to provide only an approximate date of return.⁽¹¹⁹⁾ Treatment and recuperation do not always permit exact timetables. Thus, an employer cannot claim undue hardship solely because an employee can provide only an approximate date of return. In such situations, or in situations in which a return date must be postponed because of unforeseen medical developments, employees should stay in regular communication with their employers to inform them of their progress and discuss, if necessary, the need for continued leave beyond what might have been granted originally.⁽¹²⁰⁾

   Example A: An experienced chef at a top restaurant requests leave for treatment of her disability but cannot provide a fixed date of return. The restaurant can show that this request constitutes undue hardship because of the difficulty of replacing, even temporarily, a chef of this caliber. Moreover, it leaves the employer unable to determine how long it must hold open the position or to plan for the chef’s absence. Therefore, the restaurant can deny the request for leave as a reasonable accommodation.

   Example B: An employee requests eight weeks of leave for surgery for his disability. The employer grants the request. During surgery, serious complications arise that require a lengthier period of recuperation than originally anticipated, as well as additional surgery. The employee contacts the employer after three weeks of leave to ask for an additional ten to fourteen weeks of leave (i.e., a total of 18 to 22 weeks of leave). The employer must assess whether granting additional leave causes an undue hardship.

3. Does a cost-benefit analysis determine whether a reasonable accommodation will cause undue hardship?No. A cost-benefit analysis assesses the cost of a reasonable accommodation in relation to the perceived benefit to the employer and the employee. Neither the statute nor the legislative history supports a cost-benefit analysis to determine whether a specific accommodation causes an undue hardship.⁽¹²¹⁾ Whether the cost of a reasonable accommodation imposes an undue hardship depends on the employer’s resources, not on the individual’s salary, position, or status (e.g., full-time versus part-time, salary versus hourly wage, permanent versus temporary).
4. Can an employer claim undue hardship solely because a reasonable accommodation would require it to make changes to property owned by someone else?No, an employer cannot claim undue hardship solely because a reasonable accommodation would require it to make changes to property owned by someone else. In some situations, an employer will have the right under a lease or other contractual relationship with the property owner to make the type of changes that are needed. If this is the case, the employer should make the changes, assuming no other factors exist that would make the changes too difficult or costly. If the contractual relationship between the employer and property owner requires the owner’s consent to the kinds of changes that are required, or prohibits them from being made, then the employer must make good faith efforts either to obtain the owner’s permission or to negotiate an exception to the terms of the contract. If the owner refuses to allow the employer to make the modifications, the employer may claim undue hardship. Even in this situation, however, the employer must still provide another reasonable accommodation, if one exists, that would not cause undue hardship.

   Example A: X Corp., a travel agency, leases space in a building owned by Z Co. One of X Corp.’s employees becomes disabled and needs to use a wheelchair. The employee requests as a reasonable accommodation that several room dividers be moved to make his work space easily accessible. X Corp.’s lease specifically allows it to make these kinds of physical changes, and they are otherwise easy and inexpensive to make. The fact that X Corp. does not own the property does not create an undue hardship and therefore it must make the requested accommodation.

   Example B: Same as Example A, except that X Corp.’s lease requires it to seek Z Co.’s permission before making any physical changes that would involve reconfiguring office space. X Corp. requests that Z Co. allow it to make the changes, but Z Co. denies the request. X Corp. can claim that making the physical changes would constitute an undue hardship. However, it must provide any other type of reasonable accommodation that would not involve making physical changes to the facility, such as finding a different location within the office that would be accessible to the employee.

   An employer should remember its obligation to make reasonable accommodation when it is negotiating contracts with property owners.⁽¹²²⁾ Similarly, a property owner should carefully assess a request from an employer to make physical changes that are needed as a reasonable accommodation because failure to permit the modification might constitute “interference” with the rights of an employee with a disability.⁽¹²³⁾ In addition, other ADA provisions may require the property owner to make the modifications.⁽¹²⁴⁾

BURDENS OF PROOF

In US Airways, Inc. v. Barnett, 535 U.S., 122 S. Ct. 1516 (2002), the Supreme Court laid out the burdens of proof for an individual with a disability (plaintiff) and an employer (defendant) in an ADA lawsuit alleging failure to provide reasonable accommodation. The “plaintiff/employee (to defeat a defendant/employer’s motion for summary judgment) need only show that an ‘accommodation’ seems reasonable on its face, i.e., ordinarily or in the run of cases.”⁽¹²⁵⁾ Once the plaintiff has shown that the accommodation s/he needs is “reasonable,” the burden shifts to the defendant/employer to provide case-specific evidence proving that reasonable accommodation would cause an undue hardship in the particular circumstances.⁽¹²⁶⁾

The Supreme Court’s burden-shifting framework does not affect the interactive process triggered by an individual’s request for accommodation.⁽¹²⁷⁾ An employer should still engage in this informal dialogue to obtain relevant information needed to make an informed decision.

INSTRUCTIONS FOR INVESTIGATORS

When assessing whether a Respondent has violated the ADA by denying a reasonable accommodation to a Charging Party, investigators should consider the following:

\

• Is the Charging Party “otherwise qualified” (i.e., is the Charging Party qualified for the job except that, because of disability, s/he needs a reasonable accommodation to perform the position’s essential functions)?
• Did the Charging Party, or a representative, request a reasonable accommodation (i.e., did the Charging Party let the employer know that s/he needed an adjustment or change at work for a reason related to a medical condition)? [see Questions 1-4]
  • Did the Respondent request documentation of the Charging Party’s disability and/or functional limitations? If yes, was the documentation provided? Did the Respondent have a legitimate reason for requesting documentation? [see Questions 6-8]
  • What specific type of reasonable accommodation, if any, did the Charging Party request?
  • Was there a nexus between the reasonable accommodation requested and the functional limitations resulting from the Charging Party’s disability? [see Question 6]
  • Was the need for reasonable accommodation related to the use of medication, side effects from treatment, or symptoms related to a disability? [see Questions 36-38]
• For what purpose did the Charging Party request a reasonable accommodation:
  • for the application process? [see Questions 12-13]
  • in connection with aspects of job performance? [see Questions 16-24, 32-33]
  • in order to enjoy the benefits and privileges of employment? [see Questions 14-15]
• Should the Respondent have initiated the interactive process, or provided a reasonable accommodation, even if the Charging Party did not ask for an accommodation? [see Questions 11, 39]
• What did the Respondent do in response to the Charging Party’s request for reasonable accommodation (i.e., did the Respondent engage in an interactive process with the Charging Party and if so, describe both the Respondent’s and the Charging Party’s actions/statements during this process)? [see Questions 5-11]
• If the Charging Party asked the Respondent for a particular reasonable accommodation, and the Respondent provided a different accommodation, why did the Respondent provide a different reasonable accommodation than the one requested by the Charging Party? Why does the Respondent believe that the reasonable accommodation it provided was effective in eliminating the workplace barrier at issue, thus providing the Charging Party with an equal employment opportunity? Why does the Charging Party believe that the reasonable accommodation provided by the Respondent was ineffective? [see Question 9]
• What type of accommodation could the Respondent have provided that would have been “reasonable” and effective in eliminating the workplace barrier at issue, thus providing the Charging Party with an equal employment opportunity?
• Does the charge involve allegations concerning reasonable accommodation and violations of any conduct rules? [see Questions 34-35]
• If the Charging Party alleges that the Respondent failed to provide a reassignment as a reasonable accommodation [see generally Questions 25-30 and accompanying text]:
  • did the Respondent and the Charging Party first discuss other forms of reasonable accommodation that would enable the Charging Party to remain in his/her current position before discussing reassignment?
  • did the Respondent have any vacant positions? [see Question 27]
  • did the Respondent notify the Charging Party about possible vacant positions? [see Question 28]
  • was the Charging Party qualified for a vacant position?
  • if there was more than one vacant position, did the Respondent place the Charging Party in the one that was most closely equivalent to the Charging Party’s original position?
  • if the reassignment would conflict with a seniority system, are there “special circumstances” that would make it “reasonable” to reassign the Charging Party? [see Question 31]
• If the Respondent is claiming undue hardship [see generally Questions 42-46 and accompanying text]:
  • what evidence has the Respondent produced showing that providing a specific reasonable accommodation would entail significant difficulty or expense?
  • if a modified schedule or leave is the reasonable accommodation, is undue hardship based on the impact on the ability of other employees to do their jobs? [see Question 42]
  • if leave is the reasonable accommodation, is undue hardship based on the amount of leave requested? [see Question 43]
  • if there are “special circumstances” that would make it “reasonable” to reassign the Charging Party, despite the apparent conflict with a seniority system, would it nonetheless be an undue hardship to make the reassignment? [see Question 31]
  • is undue hardship based on the fact that providing the reasonable accommodation requires changes to property owned by an entity other than the Respondent? [see Question 46]
  • if the Respondent claims that a particular reasonable accommodation would result in undue hardship, is there another reasonable accommodation that Respondent could have provided that would not have resulted in undue hardship?
• Based on the evidence obtained in answers to the questions above, is the Charging Party a qualified individual with a disability (i.e., can the Charging Party perform the essential functions of the position with or without reasonable accommodation)?

APPENDIX
RESOURCES FOR LOCATING REASONABLE ACCOMMODATIONS

U.S. Equal Employment Opportunity Commission
1-800-669-3362 (Voice)
1-800-800-3302 (TT)

The EEOC’s Publication Center has many free documents on the Title I employment provisions of the ADA, including both the statute, 42 U.S.C. . 12101 et seq. (1994), and the regulations, 29 C.F.R. . 1630 (1997). In addition, the EEOC has published a great deal of basic information about reasonable accommodation and undue hardship. The two main sources of interpretive information are: (1) the Interpretive Guidance accompanying the Title I regulations (also known as the “Appendix” to the regulations), 29 C.F.R. pt. 1630 app. .. 1630.2(o), (p), 1630.9 (1997) , and (2) A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act III, 8 FEP Manual (BNA) 405:6981, 6998-7018 (1992). The Manual includes a 200-page Resource Directory, including federal and state agencies, and disability organizations that can provide assistance in identifying and locating reasonable accommodations.

The EEOC also has discussed issues involving reasonable accommodation in the following guidances and documents: (1) Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations at 5, 6-8, 20, 21-22, 8 FEP Manual (BNA) 405:7191, 7192-94, 7201 (1995); (2) Enforcement Guidance: Workers’ Compensation and the ADA at 15-20, 8 FEP Manual (BNA) 405:7391, 7398-7401 (1996); (3) Enforcement Guidance: The Americans with Disabilities Act and Psychiatric Disabilities at 19-28, 8 FEP Manual (BNA) 405:7461, 7470-76 (1997); and (4) Fact Sheet on the Family and Medical Leave Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act of 1964 at 6-9, 8 FEP Manual (BNA) 405:7371, 7374-76 (1996).

Finally, the EEOC has a poster that employers and labor unions may use to fulfill the ADA’s posting requirement.

All of the above-listed documents, with the exception of the ADA Technical Assistance Manual and Resource Directory and the poster, are also available through the Internet at http://www.eeoc.gov.

U.S. Department of Labor
(To obtain information on the Family and Medical Leave Act)
To request written materials:
1-800-959-3652 (Voice)
1-800-326-2577 (TT)
To ask questions: (202) 219-8412 (Voice)

Internal Revenue Service
(For information on tax credits and deductions for providing certain reasonable accommodations)

(202) 622-6060 (Voice)

Job Accommodation Network (JAN)
1-800-232-9675 (Voice/TT)
http://janweb.icdi.wvu.edu/.

A service of the President’s Committee on Employment of People with Disabilities. JAN can provide information, free-of-charge, about many types of reasonable accommodations.

ADA Disability and Business Technical Assistance Centers (DBTACs) 1-800-949-4232 (Voice/TT)

The DBTACs consist of 10 federally funded regional centers that provide information, training, and technical assistance on the ADA. Each center works with local business, disability, governmental, rehabilitation, and other professional networks to provide current ADA information and assistance, and places special emphasis on meeting the needs of small businesses. The DBTACs can make referrals to local sources of expertise in reasonable accommodations.

Registry of Interpreters for the Deaf
(301) 608-0050 (Voice/TT)

The Registry offers information on locating and using interpreters and transliteration services.

RESNA Technical Assistance Project
(703) 524-6686 (Voice)
(703) 524-6639 (TT)
http://www.resna.org/hometa1.htm

RESNA, the Rehabilitation Engineering and Assistive Technology Society of North America, can refer individuals to projects in all 50 states and the six territories offering technical assistance on technology-related services for individuals with disabilities. Services may include:

• information and referral centers to help determine what devices may assist a person with a disability (including access to large data bases containing information on thousands of commercially available assistive technology products),
• centers where individuals can try out devices and equipment,
• assistance in obtaining funding for and repairing devices, and
• equipment exchange and recycling programs.

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Texas Payday Law Appeals — Texas Workforce Commission

Overview

An appeal is your written notice that you disagree with a TWC decision and want your case decided through the appeal process. State law gives TWC sole authority in disputed wage claims; no other state agency or official can affect the outcome of an appeal. To participate in an appeal you must meet submission deadlines.

The appeal process is structured so that you do not need an attorney. You may choose to have an attorney or other person represent you at your own expense.

There are three levels of appeal. You start with the first level, and if you disagree with that decision, you may proceed through the other levels.

1. Appeal to the Appeal Tribunal
2. Appeal to the Commission
3. Motion for Rehearing or Appeal to a Civil Court

Appeal to the Appeal Tribunal

The first step in the appeals process is an appeal to the Appeal Tribunal. The Appeal Tribunal is the name the Texas Payday Law gives to hearing officers who hold wage claim hearings. Each appeal case has only one hearing officer.

The first appeal is a telephone hearing, except that when a sign-language interpreter is required the hearing may be in-person instead.

The claimant and employer may present testimony, witnesses, and documents relevant to its case. During the Appeal Tribunal hearing, the hearing officer will determine what is relevant and make sure that the record is complete. After the hearing, the hearing officer will mail a decision to the interested parties.

How to Appeal a Determination

These instructions are for the first step in the appeals process, which is an appeal to the Appeal Tribunal. The first step is to appeal in writing to TWC.

You must appeal in writing within 21 calendar days from the date that we mail you the Preliminary Wage Determination Order, which is shown at the top of that form. If the twenty-first day falls on a federal or state holiday, you have until the next business day to submit your appeal.

You can submit your written appeal online, in person at your Workforce Solutions office, or by mailing or faxing your appeal letter to the Special Hearings Department at the address or fax number on your Preliminary Wage Determination Order. You cannot submit an appeal by e-mail or over the telephone. If you choose to fax the information, keep the paperwork that indicates successful transmission of your appeal.

Your letter or appeal form must include:

• Your name
• Wage claim number
• Your Social Security Number or TWC Tax ID number
• Your current address
• The date TWC mailed you the Preliminary Wage Determination Order
• A copy of the Preliminary Wage Determination Order, if possible
• Any dates on which you will not be able to participate in a hearing

Keep a copy of your appeal for your records.

Accommodations for Your Hearing

Inform us in writing as early as possible if you need accommodations for the appeal hearing:

• If you or your witnesses need interpreters – include needed languages
• If you or your witnesses have a hearing impairment
• If you need access to a telephone or fax machine

Appeal Hearing Notification Details

It may take six to eight weeks to receive a hearing information packet with information about your appeal. TWC will mail you the packet ten to twenty days before your hearing.

The hearing information packet includes:

• The Notice of Telephone Hearing, which includes the date and time of hearing, the telephone number to call for the hearing, and the name and contact information of the hearing officer assigned to the hearing
• Instructions on how to participate in the hearing
• Instructions on how to submit documents for the telephone hearing to the hearing officer and to the other side
• The claim issues up for discussion

Change Your Address

It is important that you keep your mailing address up to date because we will mail the hearing information packet and appeal decision to the address in our records. Change your address with us as needed in writing by mail or fax to the Special Hearings address or fax number listed under Contact Information.

Preparing for Your Hearing

Allow enough time for your hearing. How long the hearing takes depends on many things, including the number of witnesses, documents, and issues in the case. Usually, hearings take from one hour to four hours to complete.

It is important to prepare all of the documentation, witnesses and evidence that you need to support your side of the issues. It is your responsibility to make sure that both the hearing officer and the other side receive copies of all the documents you wish to refer to before the hearing date. This will increase your credibility and allow the hearing officer to make a just determination of the facts.

Document Evidence You Want to Present at Your Hearing

Case documentation could include:

• Letters and memos
• Timecards
• Pay stubs or payroll records
• Employee handbooks
• Written authorizations for deductions from wages
• Employment agreements
• Commission agreements and invoices

All documents must relate directly to the issues on the hearing notice. Be ready to tell who prepared the evidence and how it helps your case.

Any documents you want to present during the hearing must be provided to the hearing officer and to the other party in your appeal (the employee or the employer) if applicable.

• For a telephone hearing, mail or fax a copy of all of the documents you want to present to the hearing officer and to the other party. Send them as far in advance as possible. Documents cannot be used if they are not provided in enough time before the hearing begins.
• The hearing officer’s address and fax number is on the first page of the hearing information packet. If there is another party in your case, that person’s mailing address is also on the first page.
• For an in-person hearing, you can bring the documents with you or send them in advance.

Calling Witnesses & Notifying the Hearing Officer

If you wish to call witnesses, they should have personal (first-hand) knowledge about the background, policies, incidents, or events regarding the issues on the hearing notice. For example, they either saw the incident, heard a supervisor say something directly, or saw the paperwork connected to the event.

Contact your witnesses before the hearing and have them arrange their schedules so they can participate in the hearing.

During the hearing, you must give the hearing officer your list of witnesses and the contact phone numbers. Have your witnesses remain available for the call until the hearing officer or you release them from the hearing.

If your hearing is in person, simply have your witnesses appear at the hearing location at the time and date for the hearing, or they may participate by phone as stated above.

If You Need to Subpoena Witnesses

A subpoena is a written legal order that requires a person to appear at a hearing to testify or produce documents for a hearing.

Subpoenas may be issued at the discretion of the hearing officer. A request for a subpoena will be granted only after the hearing officer determines that the records or witnesses requested to be subpoenaed are relevant to the issues on appeal.

TWC pays the applicable fees for issuing a subpoena.

Withdrawing Your Appeal

If you no longer want to proceed with the hearing, you have the option to withdraw your appeal. Only the individual who filed the appeal can withdraw or cancel the appeal.

The withdrawal of your appeal must be done in writing or recorded by contacting the hearing officer and also must contain the specific words that you wish to “withdraw your appeal.”

The appeal can be withdrawn either before or during the hearing.

Participating in Your Appeal Hearing

Before the Hearing

For telephone hearings, you must provide a phone number where we can reach you for the hearing. Provide your contact information on the day of your hearing, at least 10 minutes before your hearing is scheduled to begin. You can give us your phone number in one of two ways:

• Register online at C2T Online Registration, https://tx.c2tinc.com/register, and follow the instructions on that web site. You will need your Case Number.
• Call TWC at our toll-free number shown on your Notice of Hearing and speak with the receptionist.

If you do not call in on time, you may not be allowed to participate in the hearing.

Beginning the Hearing

When it is time for the hearing, the hearing officer will call you and connect all parties and witnesses to a conference call. The hearing will begin when everyone is connected.

All of the hearings are scheduled for the Central Time zone. If you have any questions about when you should call, please call the toll-free number listed on the Notice of Hearing.

Why You Should Participate

It is very important that you provide your phone number for your hearing before the scheduled hearing time and that you take part in your appeal hearing. The hearing officer makes their decision based entirely on the evidence given at the appeal hearing.

If you find you cannot participate in the hearing for any reason, mail or fax a written postponement request as soon as you can. TWC rules allow hearing officers to delay or reschedule hearings only in specific, limited cases.

What Happens in the Appeal Tribunal Hearing

All hearings are recorded. The law requires the hearing officer to give a very specific opening statement at the beginning of each hearing. This opening statement includes:

• Information identifying the case for the record
• What determination and issues are on appeal
• Who is taking part in the hearing
• Each party’s rights
• The procedures used for the hearing

The hearing officer will put everyone who will speak under oath, and then answer questions about the opening statement before hearing any testimony.

If you have more than one person present, you must designate one primary representative, which may be you or your chosen representative. That primary representative will be able to:

• Question the witnesses
• Give their own testimony
• Look at and object to documents

Order of Testimony in a Hearing

The hearing officer will hear statements from each side in turn, one witness at a time. The hearing officer will question the witnesses, and then allow them to add relevant information.

The witness’s primary representative will be able to question the witness. The other side can then question the witness. The hearing will follow this procedure until everyone has spoken.

The hearing officer will discuss any documents that were sent in by either party or that are part of the case file. Documents will be admitted into evidence after ruling on any objections by either side.

The hearing officer will then let both sides add any new testimony before ending the hearing.

What to Do If You Did Not Participate in the Appeal Hearing

If you did not participate in the Appeal hearing and disagree with the decision, you can submit a request to reopen your case at the Appeal Tribunal level within 14 calendar days after the mailing date of the decision. However, you must show that you had a good reason for missing the prior hearing.

After the Hearing

After the hearing is complete, the hearing officer will mail you a written decision, usually within five to ten working days.

Request an Audio Recording of Your Hearing

You can request a copy of the CD recording of your hearing. Your written request must include identifying information: your name, appeal number, the last four digits of your Social Security number, and your telephone number and mailing address.

Mail or fax your request in writing to the TWC Special Hearings Department:

• Special Hearings
  Texas Workforce Commission
  Attn: CD Duplication
  101 E 15th St, Rm 406
  Austin, TX, 78778
• Fax: 512-463-9318, Attention: CD Duplication

It usually takes one to two weeks for you to receive your copy. The first copy is free; there is a small charge for any additional copies. Only parties to the appeal can request a copy of the recording.

Appeal to the Commission

If you disagree with the results of the Appeal Tribunal, you may appeal to the Texas Workforce Commission. The Commission will rule on your case after reviewing the Appeal Tribunal decision and listening to the recorded hearing. E-mail questions to commission.appeals@twc.state.tx.us.

You must appeal in writing within 14 calendar days from the date TWC mailed you the Appeal Tribunal decision. The mailing date is printed on the coversheet of your appeal decision.

You can submit your written appeal online, in person at your Workforce Solutions office, or by mailing or faxing your appeal letter to Commission Appeals at the address or fax number in the instructions included with your Appeal Tribunal decision. You cannot file an appeal by e-mail or over the telephone. If you choose to fax the information, keep the paperwork that indicates successful transmission of your appeal.

Commission Appeal Process

A reviewing attorney in Commission Appeals will review the audio-recording of your hearing. The attorney will also review all other evidence accepted at your first appeal hearing. The reviewing attorney will make a recommendation to the Commission regarding the decision in the case.

The Commissioners will review the recommendation separately and will decide whether or not to follow it. Then the Commission will vote on the case and issue a written decision. They may order an additional hearing to gather more evidence, but they usually do not.

We will mail you the decision from the Commission.

If you disagree with the Commission decision, you have two options: a Motion for Rehearing, or an appeal to a civil court.

Motion for Rehearing

If you disagree with the Commission decision, you may request a Motion for Rehearing by the Commission within 14 calendar days after the date TWC mailed you the Commission decision. TWC will grant the Motion for Rehearing only if you show these three things

• Important new information about your case
• A compelling reason why you did not present the new information earlier
• Why you think the new information could change the Commission decision

You can submit your written Motion for Rehearing online, in person at your nearest Workforce Solutions office, or by mailing or faxing your letter to Commission Appeals at the address or fax number in the instructions included with your Commission decision. You cannot file a Motion for Rehearing by e-mail or telephone. If you choose to fax the information, keep the paperwork that indicates successful transmission of your Motion for Rehearing.

If you ask for a rehearing and the Commission denies it, you can still appeal that decision to a civil court.

Appeal to a Civil Court

You may appeal to a civil court within 30 calendar days after the date TWC mailed you the Commission decision. You must have completed all the appeal steps available through TWC, except the optional Motion for Rehearing, before appealing to a civil court. The instructions for submitting an appeal to a civil court are included with the Commission decision.

 

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

According to the Texas Workforce’s interpretation and analysis, a common problem is that of what happens with an employer’s duty to pay commissions and bonuses once an employee has left the company. The answer depends upon the terms of the commission or bonus agreement. Commission pay agreements are enforceable whether they are oral or in writing, and agreements can be established with a showing of a pattern or practice of paying commissions in a certain way. Thus, the advice to have a clear, signed written wage agreement applies with particular force to commissions. Changes to written agreements must be in writing. A good agreement will avoid the risks of ambiguity by clearly setting out how commissions are earned, when and under what circumstances they are paid, whether “chargebacks” are made and under what circumstances, and what happens to commissions from sales in progress at the time of work separation. Similarly, a bonus agreement should specify exactly how a bonus is earned, how it is calculated, when it is paid, whether it is discretionary in any way (as to the amount, timing, or ability of the company to cancel the bonus altogether under certain conditions), and what happens to a bonus that is not determined or paid out until after an employee has left the company. If the commission or bonus agreement provides for payment of commissions and bonuses in any way after an employee has separated from employment, the deadline for such a payment would be based upon the wording of the agreement. Prior draws against commissions may be offset against the final pay; under 40 T.A.C. § 821.26(d), “[d]raws against commissions or bonuses may be recovered from the current or any subsequent pay period until fully reconciled.” The key to protecting the company’s interests is to spell out in a clear, written agreement exactly how, when, and under what circumstances commissions and bonuses will be paid, and then follow the written agreement to the letter, because that is how TWC will enforce the agreement in the event of a wage claim concerning such payments.

The Texas Family Code provides that garnishment for support obligations apply to certain post-termination lump-sum payments such as a bonus, commission, or payout of accrued leave (see Texas Family Code § 158.215): if such a lump-sum payment is $500 or more, the employer must notify the Attorney General’s office (do it in writing or electronically – see https://portal.cs.oag.state.tx.us/wps/portal/WageWithholdingResponsibilities#lumpsum) before making the payment so that that agency can determine whether a support deduction should be made. The agency then has ten days after that date to notify the employer about its duty to make the support deduction; if no such notification occurs, the employer may make the payment without the deduction. If, however, the agency informs the employer that the support order would apply to the lump-sum payment, the employer would need to make the deduction. Since such a garnishment would be pursuant to a court order, it would not have to be authorized in writing by the employee.

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.