Here is the second installment of our two-part series on questions about the reasonable accommodation process under the Americans with Disabilities Act (ADA). To read part one, go here.
Q: Under the ADA, must the employee specify the precise accommodation they need for a disability? If not, what are my next steps?
A: No, the individual with a disability doesn't have to specify the precise accommodation. However, they must describe the problems posed by the workplace barrier. Once you have enough information to determine that the employee is entitled to a reasonable accommodation, you must make a reasonable effort to identify one if it isn't readily apparent. As you explore options, keep an open mind and make sure you ask the employee if they have any suggestions. The employee's healthcare provider may also be able to provide ideas and/or help evaluate options. You can also consult legal counsel, the Job Accommodation Network, and vocational rehabilitation, rehabilitation engineers, and disability-related organizations for additional ideas.
Q: Ok, 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?
A: You should give the employee's preference primary consideration. However, you may choose another reasonable accommodation as long as the chosen accommodation is effective in removing the workplace barrier. For example, if there are two possible reasonable accommodations, and one costs more or is more burdensome than the other, you may choose the less expensive or burdensome accommodation as long as it is effective in removing the workplace barrier. You should document why you chose a particular accommodation, including why you think it will be effective.
Q: Can I ask for documentation to confirm an employee's need for an accommodation?
A: When the disability and/or the need for accommodation isn't obvious, an employer may ask for reasonable documentation to establish that the individual has a qualified disability that necessitates an accommodation. The request for documentation should be restricted to 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 the activities.
Q: How long do I have to wait for an employee to return documentation?
A: Under the ADA, there is no set timeframe for the employee to return documentation. Employers should give employees a reasonable amount of time to provide the documentation. Keep in mind that timeframes may need to be adjusted during the COVID-19 pandemic and other situations when securing a medical appointment and/or obtaining documentation from a healthcare provider may be more difficult.
Q: Can I require that the documentation come from a doctor?
A: An employer may require that the documentation about the disability and the functional limitations come from an appropriate healthcare or rehabilitation professional, but it doesn't have to be a doctor, according to the Equal Employment Opportunity Commission (EEOC), which enforces the ADA. In guidance, the EEOC says that the appropriate professional will depend on the disability and the type of functional limitation it imposes and may include, but isn't limited to, doctors (including psychiatrists), psychologists, nurses, physical therapists, occupational therapists, speech therapists, vocational rehabilitation specialists, and licensed mental health professionals.
Q: We provided time off as a reasonable accommodation to an employee with multiple sclerosis. The employee's spouse called to say the employee had a medical emergency due to their condition and needs more time off. Can I ask for documentation to confirm this is related to their medical condition?
A: Yes, under the ADA, you can ask the spouse to send documentation from the employee's treating provider that confirms that the hospitalization was related to the multiple sclerosis and provides information on how long an absence may be required from work.
Q: An employee has asked for time off as a reasonable accommodation for their disability. However, they aren't sure when they will be able to return. Do I have to still provide the time off?
A: Providing time off to an employee who is unable to provide a fixed return date is a form of reasonable accommodation if it doesn't cause an undue hardship. Consult legal counsel if you believe granting leave without a fixed return date would cause an undue hardship. If you grant the time off without a fixed return date, you may require the employee to provide periodic updates on their condition and possible date of return. After receiving these updates, you may reevaluate (with legal counsel) whether continued time off constitutes an undue hardship.
Q: We granted an employee eight weeks of time off as a reasonable accommodation. They just called to ask for six more weeks. Am I required to grant this additional time off?
A: Providing additional time off to an employee is a form of reasonable accommodation if it doesn't cause an undue hardship. Consult legal counsel if you believe granting additional time off would cause an undue hardship.
Q: My employee said that their disability is the cause of a violation of a conduct/attendance/performance standard. What should I do now?
A: You aren't required to excuse the past misconduct even if it is the result of the individual's disability. If an employee violates a rule that is job-related and consistent with business necessity, and all employees are held to the same standard, you may still discipline the employee for their misconduct. However, you must provide a reasonable accommodation to enable the employee with a disability to meet the standard in the future, barring undue hardship, except where the punishment for the violation is termination. Possible reasonable accommodations could include adjustments to starting times, specified breaks, and leave if these accommodations will enable an employee to comply with the standards. Consult legal counsel if you have specific questions regarding disciplinary action for misconduct by an employee with a disability.
Q: What can I do if I am worried that if I give an employee a reasonable accommodation, other employees will ask for the same thing?
A: Remember, employees must have a disability or a record of one to be entitled to a reasonable accommodation under the ADA. Plus, the nature and extent of impairments and the requirements of the job will vary, so accommodations must be made on a case-by-case basis and will vary as a result.
Ensure your policies and practices for providing reasonable accommodation comply with applicable laws, and make sure your supervisors are trained on how to identify and respond to requests for accommodations.
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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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