The Americans with Disabilities Act (ADA) and state counterparts require certain employers provide individuals with disabilities reasonable accommodations — a mandate with far-reaching implications, especially as the COVID-19 pandemic drags on. Here are some helpful tips to know to stay in compliance.
What is a reasonable accommodation?
The laws generally define reasonable accommodations as adjustments or modifications that enable people with disabilities to apply for a job, perform a job, or enjoy the same benefits and privileges of employment (e.g., access to training) as employees without disabilities.
Providing such an accommodation is an ongoing duty that continues when an employee or qualified applicant requests a different accommodation or you become aware that the current accommodation isn’t effective.
Is my business subject to the reasonable accommodation requirement?
The ADA generally applies to private employers with at least 15 employees. State laws can have lower thresholds, though. Some, such as the Illinois Human Rights Act, apply to employers of any size. The best practice is to provide accommodations whenever possible.
Who qualifies for an accommodation?
Reasonable accommodations are available to qualified job applicants and full-time, part-time, and probationary employees with disabilities. The ADA was amended in 2008 and theAmericans with Disabilities Amendments Act (ADAAA)now broadly interprets the term “disability.”
For purposes of reasonable accommodation, federal law (and most state laws) defines an individual with a disability as a person with:
- a physical or mental impairment that substantially limits one or more major life activities or
- a record of a physical or mental impairment that substantially limited a major life activity.
Major life activities are numerous and include, but are not limited to:
- Caring for oneself
- Performing manual tasks
- Interacting with others
The ADAAA also expanded major life activities to encompass the operation of major bodily functions, including those of:
- the immune system,
- special sense organs and skin,
- normal cell growth,
- musculoskeletal, and
- reproductive functions.
With the definition of “disability” so wide-ranging, you’d be wise, when in doubt, to assume that an individual’s condition is indeed a disability. In fact, federal regulations provide that some impairments are “virtually always” considered a disability, including:
- Intellectual disabilities
- Partially or completely missing limbs or mobility impairments requiring the use of a wheelchair
- Cerebral palsy
- Human immunodeficiency virus (HIV) infection
- Multiple sclerosis
- Muscular dystrophy
- Major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia
Note: The Equal Employment Opportunity Commission (EEOC) has recognized that so-called “long COVID” may qualify as a disability if it substantially limits one or more major life activities. While more episodic bouts of COVID are probably too transitory and limited in their impact on major life activities to qualify, always think broadly when determining if someone’s situation would qualify as having a disability for the purposes of an accommodation.
Are individuals required to make a formal written request for a reasonable accommodation?
No. Reasonable accommodation requests can be made at any time, verbally or in writing. The request doesn’t even need to refer to the applicable law or include the term “reasonable accommodation.” In other words, there are no magic words necessary to trigger your obligation.
For example, any of the following would be considered a request for a reasonable accommodation:
- “I’m having trouble getting here on time because of medical treatments I’m receiving.”
- “I need six weeks off to get treatment for a back problem.”
- “My wheelchair doesn’t fit under my desk.”
- “My back hurts a lot from sitting at this desk all day”
- PRO TIP – this is a perfect example of a potential reasonable accommodation request for something like a standing desk or another ergonomic option
Note, too, that the requests can come from someone other than the individual with the disability. A request could, for example, be made by a family member, friend, or medical professional.
How should I respond to a request for accommodation?
This is the area where employers can inadvertently land themselves in hot water if not careful. Much of the confusion has to do with what they can — and can’t — ask.
If the individual’s disability isn’t obvious or already known, you can ask questions to determine:
- If the condition is disability
- How the requested accommodation would address limitations created by the disability and allow the individual to perform the fundamental job duties (known as “essential functions of the job”)
When the condition is among those “virtually always” deemed a disability, don’t spend much time on the first prong and instead focus your questions on the accommodation.
If the impairment isn’t obvious, known, or “virtually always” a disability, you can request medical documentation to determine whether the employee has a disability and needs an accommodation.
Take care to remain laser-focused when making such requests. You can’t ask for documentation unrelated to those two questions, inquire about other medical conditions or disabilities not targeted by the accommodation, or request complete medical records. Also consider whether there is a need for an official inquiry if you are going to provide the accommodation as a standard business practice, such as providing a standing desk.
Once you determine that there may be a need for an accommodation, federal and state laws require you to engage in a timely, good faith “interactive process” to determine accommodations that are both feasible for the employer and helpful to the employee. The failure to engage in the process can provide the grounds for a disability discrimination lawsuit.
What type of accommodations should I provide?
Common examples of reasonable accommodations include:
- Making existing facilities employees use readily accessible to and usable by individuals with disabilities
- Job restructuring (reallocating or redistributing marginal job, nonessential, functions of a job)
- Reassignment to a vacant position
- Part-time or modified work schedules
- Altering when, how, or where an essential job function is performed
- Providing or modifying tools, equipment, or devices
- Adjusting or modifying examinations
- Adjusting or modifying training materials
- Adjusting or modifying workplace policies, procedures, or regulations, including adjusting a policy governing leaves of absence
- Leaves of absence
- Providing a qualified reader, or written materials in an accessible format, such as large print or Braille
- Providing a qualified interpreter
- Assignment to a new or different supervisor
- Telecommuting or working from home
You don’t need to eliminate the job’s essential functions, reduce production standards (quality or quantity), or provide employees with personal use items such as hearing aids or wheelchairs.
And you aren’t required to provide the specific accommodation requested or the best accommodation — you’re allowed to choose an accommodation that’s cheaper or less burdensome as long as it’s an effective accommodation. Just remember to keep the process interactive. Communicate with the employee and allow them to provide feedback and suggestions. Do not dictate one way or the other without first communicating with the employee. The law requires a relaxed and interactive communication back and forth.
If you need additional ideas, there are resources like the Department of Labor’s Job Accommodation Network that can help find an effective accommodation that can work for your business.
What about accommodations for COVID vulnerability?
Some employees with disabilities that put them at higher risk from COVID may hold positions that can only be performed in a work environment. If they request an accommodation to reduce their contact with others, the EEOC suggests:
- Designating one-way aisles
- Using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers
- Temporary job restructuring of marginal job duties
- Temporary transfers to a different job
- Modified work schedules
But the ADA doesn’t require accommodations for nondisabled employees to reduce their risk of exposing a family member at higher risk from COVID due to an underlying medical condition.
Many employers have shifted to remote work due to the pandemic. If those employers had previously denied a request to work at home as a reasonable accommodation, they might need to respond differently to future requests for remote work.
According to the EEOC, working remotely because of COVID could serve as a trial period that showed a disabled employee could satisfactorily perform all essential functions from home. Employers should consider any new employee requests in light of this information, rather than reflexively denying them based on concerns that the essential functions can’t be performed remotely. Remote work has the potential to open up your workforce to an entirely new population of employees—such as those with disabilities who have a difficult time leaving their home.
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Are there any circumstances when I can deny a reasonable accommodation?
Employers aren’t required to provide a reasonable accommodation if it causes “undue hardship,” meaning significant difficulty or expense. For example, an accommodation might create significant difficulty if it would be unduly disruptive to coworkers’ ability to work or the employer’s operations. But don’t think it is so easy to claim “undue hardship” because more often than not, an employer can work with an employee to find a solution that will work for everyone!
As for expense, you aren’t allowed to deny an accommodation just because it comes with some cost. The cost is evaluated in light of the employer’s size, its financial resources, and the needs of the business.
Moreover, the determination is based on the net cost to the employer. You must consider whether funding is available from an outside source (for example, a governmental rehabilitation agency). You also must consider any tax credits or deductions that can offset the cost.
Note: The EEOC has recognized that, in some circumstances, an accommodation that wouldn’t have posed an undue hardship before the pandemic may pose one now. For example, it might be more difficult to obtain necessary equipment, remove marginal job duties, or hire temporary workers for specialized positions.
How should I handle complaints about preferential treatment?
When you grant a reasonable accommodation, you might field complaints from coworkers about “preferential treatment.” This can present a tricky situation. You cannot lawfully reveal that an employee is receiving a reasonable accommodation because you’ll effectively disclose that the individual has a disability, which the ADA explicitly prohibits.
Your best option is probably to explain that it’s company policy to assist employees who need help in the workplace and to respect such employees’ privacy and individual circumstances.
A 6-step checklist to reasonable accommodation compliance
Although the ADA doesn’t require any specific policies or procedures when an employee requests a reasonable accommodation, it’s wise to develop a formal and uniform process. You generally can reduce your risk of legal liability by the following this reasonable accommodation checklist:
1. Accept the request
Whether the employee (or someone acting on the employee’s behalf) makes a formal request or otherwise makes clear that an accommodation is necessary, treat it as the beginning of the process. Never reject a request without full consideration.
2. Confirm the need for accommodation
If the employee’s disability or need for an accommodation isn’t apparent, you can request reasonable medical documentation of the disability, its functional limitations, and possible accommodations (obtain written authorization from the employee before contacting a medical provider directly). When the information submitted is unclear or insufficient, you can request clarification. Take care to store any medical information in a confidential file separate from the employee’s personnel file.
3. Engage in a timely, good-faith interactive process
Once you decide an accommodation is warranted, meet with the employee (and, where necessary, their health care provider) to determine a reasonable and effective accommodation. Assess each request on a case-by-case basis, taking into account the specific job’s essential functions — those duties that must be performed, with or without accommodations — and the individual employee’s circumstances. Keep detailed records of these discussions.
4. Select an accommodation
Document your choice and the reasons for it. If you opt to deny an accommodation request, explain your reasons for the denial (for example, why providing an accommodation would cause you undue hardship). Similarly, should you select an accommodation different from what the employee requested, make a record of your reasoning.
5. Seek legal counsel
Consulting with a legal professional can go a long way toward protecting yourself from ADA-related lawsuits. Don’t inform the employee of your accommodation decision until you have run it by an attorney and received approval. Document the approval.
6. Monitor the selected accommodation
The obligation to provide a reasonable accommodation is ongoing. Follow up with the employee and their supervisor to confirm that the selected accommodation is working as intended. If it isn’t — or if the employee requires additional accommodation — you must again engage in the interactive process in an attempt to devise an effective accommodation. As always, document the discussions, the decisions made, and the reasons for them.