If an employee notifies you that they are having trouble getting work done because of a medical condition or disability, they may be asking for a reasonable accommodation. Such requests should be handled with care and in compliance with federal and state laws.
Many employers have questions about the reasonable accommodation process. Here we provide answers to some of the most frequently asked questions in the first of a two-part series. Read part two here.
Q: What is a reasonable accommodation?
A: Generally, this is a change in the work environment or in the way work is customarily done that enables an individual to perform the essential functions of the job and enjoy equal employment opportunities. Examples of reasonable accommodations for a disability include but are not limited to:
- Reallocating or redistributing non-essential job functions
- Altering when and/or how a task is performed
- Modifying work schedules
- Acquiring or modifying equipment
- Providing paid or unpaid leave
- Allowing the employee to perform light duty work
- Making facilities accessible to the individual
Q: What laws require reasonable accommodations for disabilities?
A: The federal Americans with Disabilities Act (ADA) requires employers with 15 or more employees to provide reasonable accommodations to qualified applicants and employees with a disability, unless it would impose an undue hardship on the employer. Many states have similar requirements, some of which cover smaller employers.
Note: Other laws may require reasonable accommodations in additional situations, such as for pregnancy or for sincerely held religious beliefs and practices.
Q: What should I do if an employee asks for an accommodation for a disability?
A: If you are covered by the ADA and/or a similar state law, talk to the employee to determine whether they have a disability as defined by federal or state law, and if so, what limitations the disability imposes on their ability to perform their job. This is a part of what is commonly referred to as the interactive process. The exact nature of the interactive process will depend on how obvious the disability is, the limitations it imposes, and the type of accommodation required.
Remember, to request accommodation, an individual need not use the phrase "reasonable accommodation." And 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.
Q: Is there a list of all the conditions that qualify as a disability under the ADA?
A: No, there is no list of all the conditions that qualify. Instead, the ADA contains a general definition of disability that must be met for an individual to be covered. The regulations implementing the ADA do provide examples of impairments considered disabilities under the definition, including deafness, blindness, intellectual disability, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.
When an employee has one of these conditions, the interactive process can focus on asking for confirmation of the diagnosis and moving on to determining the reasonable accommodation needed. With other impairments, conduct an individualized assessment using the ADA's definition of disability.
Q: What is the ADA's definition of a disability?
A: The ADA's definition of a disability has three prongs:
- A physical or mental impairment that "substantially limits" (to be construed broadly) one or more "major life activities" (see the ADA regulations for examples of major life activities); or
- A record of such an impairment; or
- Being regarded as having such an impairment
Keep in mind that some state laws define disability differently.
Q: If an individual is only "regarded as having an impairment," are they entitled to reasonable accommodations?
A: No, only individuals who meet the first two prongs of the definition are entitled to reasonable accommodations under the ADA.
Q: In what situations would I have to provide an accommodation to an individual with a "record of" an impairment that qualifies as a disability?
A: An individual with a record of an impairment may be entitled to a reasonable accommodation if needed and related to the past disability. For example, an employee who had cancer that is now in remission may need leave or a schedule change to permit them to attend follow-up or monitoring appointments with a healthcare provider.
Q: How quickly must I respond to a request for reasonable accommodation?
A: You should respond to the request, engage in the interactive process, and implement the accommodation expeditiously. Unnecessary delays can result in a violation of the ADA.
Q: What sorts of questions may I ask during the interactive process without violating the ADA?
A: Unless the disability and the type of accommodation required are obvious, you may ask the individual relevant questions that will allow you to make an informed decision about the request, such as the nature, severity, and duration of the impairment; the activities that the impairment limits; and the extent to which the impairment limits the employee's ability to perform those activities. You can also ask what type of reasonable accommodation is needed.
Q: We are a small business with very limited resources. Can we claim undue hardship without going through the interactive process?
A: No. Under the ADA, 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. It 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 individuals 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 employee;
- The impact of the accommodation on the operation of the facility.
To help make this undue hardship assessment, you'll need to gather information through the interactive process. You should also consider all possible sources of outside funding, such as from a state rehabilitation agency, when assessing whether a particular accommodation would be too costly. In addition, determine whether you are eligible for certain tax credits or deductions to offset the cost of the accommodation.
Note: Consult legal counsel when assessing whether undue hardship would apply.
Review your policies and practices to ensure compliance with reasonable accommodation requirements under federal and state law. Be sure to read next week's installment, which will cover more questions on reasonable accommodation, including:
- Under the ADA, must the employee specify the precise accommodation they need for a disability?
- I have a list of a few options for reasonable accommodations … and the employee prefers one of them. Do I have to choose that one?
- Can I ask for documentation of an employee's need for an accommodation?
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This article was originally published as an "ADP HR Tip of the Week" which is a communication created for ADP's small business clients.
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