EEOC Provides Guidance On "Reasonable Accommodation" Under ADA

Almost nine years after its enactment, compliance with the Americans with Disabilities Act (the "ADA") remains an ongoing concern for employers. To address issues confronting employers, the Equal Employment Opportunity Commission ("EEOC") recently issued an extensive "Enforcement Guidance," which explains when and under what circumstances employers must reasonably accommodate an employee's disability.

Although noting that an employer may provide more than what the law requires, the Guidance examines what "reasonable accommodation" means and who is entitled to receive it. The Guidance also addresses requests for accommodation, an employer's ability to ask questions and seek documentation in response to a request for accommodation, the types of reasonable accommodation which are appropriate in the hiring process and to the performance of a particular job, and the relationship between the ADA and the federal Family and Medical Leave Act. Finally, the Guidance addresses undue hardship and the circumstances under which accommodation requests may be denied.

This article summarizes the EEOC's position on these issues as set forth in the Enforcement Guidance and an employer's legal obligations regarding reasonable accommodation under the ADA.

Generally, the ADA requires an employer to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants, unless doing so would cause undue hardship. The Guidance separates accommodations into three categories: 1) modifications to a job application process; 2) modifications to the work environment or to the circumstances under which the job is customarily performed; and 3) modifications that enable employees with disabilities to enjoy equal benefits and privileges of employment.

The Guidance identifies the following reasonable accommodations: making existing facilities accessible; job restructuring; modified work schedules; equipment modification; changes to tests, training materials or policies; providing readers or interpreters; and reassignment to a vacant position. Notably, the Guidance also identifies several modifications which are not considered forms of reasonable accommodation. For example, an employer does not have to: 1) eliminate an essential function of the job; 2) provide personal use items needed both on and off the job for daily activities, such as wheelchairs, eyeglasses, prosthetic devices; or 3) provide personal use amenities, such as a refrigerator, if these items are not provided to non-disabled employees.

The Guidance suggests that an accommodation must be "effective" to satisfy the employer's legal obligations, meaning that it enables the employee to perform the fundamental duties of the job, to have an equal opportunity to participate in the application process, or to have an equal opportunity to enjoy the benefits and privileges of employment. "Reasonableness" relative to an accommodation is not defined by any financial or other limitation in the Guidance; rather, it is limited only where the change or modification would cause "undue hardship" on the employer.

In assessing undue hardship, the Guidance outlines quantitative, financial or other considerations which may impact on an employer's ability to provide a reasonable accommodation. Undue hardship is defined as "significant difficulty or expense" and is to be determined on a case-by-case basis, requiring an "individualized assessment of current circumstances" and focusing on the resources and circumstances of the particular employer.

The Guidance notes that reasonable accommodations that are unduly extensive, substantial, disruptive, or those which would fundamentally alter the nature or operation of the business may also constitute an undue hardship.

The Guidance affirms that an accommodation must be "requested" prior to the employer assuming that legal obligation; however, the individual need not mention the ADA and need only let the employer know that he/she needs an adjustment at work due to a medical condition. Moreover, under the Guidance, a family member, friend, health professional or other representative may initiate the request on behalf of the individual with a disability. The request does not have to be in writing, although the employer may document the request and has the right to request reasonable documentation justifying the requested accommodation. Requests may be made at any time and an individual will not be precluded from making a request because he/she did not ask for one initially. Employers must respond expeditiously to a request and act promptly to provide any reasonable accommodation.

The Guidance notes that once the employer receives the request for a reasonable accommodation, it may ask the individual questions to permit the employer to make an informed decision on the request. Reasonable documentation may be obtained to establish the existence of an ADA disability and the need for a reasonable accommodation; an employer, however, may not request a complete medical record where it is likely to contain information unrelated to the disability at issue. Alternatively, the Enforcement Guidance suggests that an employer may wish to secure a limited release from the employee to permit the employer to submit a list of specific questions to the health care professional. In some circumstances, an employer may request a medical examination conducted by the employer's health professional where the employee provides insufficient documentation. The costs of any such examination must be paid by the employer.

Significantly, it is the EEOC's position that where a disability or need for accommodation is not obvious and the individual refuses to provide the reasonable documentation suggested by the employer, there is no entitlement to reasonable accommodation. On the other hand, the employer's failure to follow up on a request for reasonable accommodation may expose the employer to liability under the ADA.

Employers should be aware that where a disability and need for reasonable accommodation are both obvious, the EEOC precludes the employer from requesting documentation in response to a request.

The Guidance recognizes that an employer may choose among reasonable accommodations as long as the chosen accommodation is effective. Thus, the employer may choose the less expensive or less burdensome alternative between two or more effective accommodations without establishing undue hardship. The EEOC notes however, that while the employer has the ultimate discretion to select the accommodation, the preferences of the individual with a disability should be given "primary consideration."

The Guidance directs that prior to the issuance of a conditional job offer, the employer may not ask an applicant whether he/she needs a reasonable accommodation unless the employer is aware of the disability and reasonably believes an accommodation may be needed to perform specific job functions. Further, only where the individual expresses a need for accommodation may the employer ask as to what type.

Once a conditional job offer is made, absent a uniform inquiry to all applicants whether reasonable accommodations related to anything connected with the job are required, specific applicants may be questioned only if the employer knows of the disability and could reasonably believe an accommodation is required.

The Guidance notes that the application process itself is subject to reasonable accommodations. The EEOC further states that such an accommodation must be offered at the application stage even if the employer believes the reasonable accommodation will not be available to perform the job.

The Guidance defines an employer's responsibility under the ADA to make available reasonable accommodations so that employees with disabilities have equal opportunity to enjoy the "benefits and privileges of employment." The Guidance define these benefits to include, but are not limited to, employer sponsored training; services (e.g. EAP's, credit unions, cafeterias, lounges, gymnasiums, auditoriums, transportation); and parties or other social functions. Employers must make available reasonable accommodations needed to gain access to, or participate in, these activities. Examples of the types of accommodations warranted in such situations are provided in the Guidance and include alternate means of accessing information and assuring adequate facilities.

The Guidance discusses in some detail certain types of reasonable accommodations related to job performance. A primary example of such an accommodation is job-restructuring where the employer may reallocate or switch marginal job functions that the employee may not be able to perform and/or altering when or how a job function is performed. Once again, the ADA does not require that essential job functions be reallocated as a reasonable accommodation.

The Guidance also discusses the use of leave, whether paid or unpaid, as a form of reasonable accommodation. The employer should allow the employee to utilize accrued paid leave first, followed by unpaid leave, to address issues related to the disability such as obtaining medical treatment or rehabilitation services. Further, the employer should hold the position open during the leave as a reasonable accommodation unless it would present an undue hardship to do so. Accordingly, employers may be required to modify "no-fault" leave policies requiring automatic termination after a certain period of leave. Even where an employer can establish an undue hardship in holding the position open, it must look for a vacant position at a lower level prior to discontinuing the leave.

The EEOC goes on to explain that the employer must not penalize an employee for work missed during leave taken as a reasonable accommodation. The employer however, may provide an accommodation other than leave if the suggested accommodation would be effective and eliminate the need for leave.

Where an employee's leave is covered under the ADA and the Family and Medical Leave Act, the Guidance directs the employer to assess the employee's rights under each law and provide the employee with the greatest protection under the both laws.

Other reasonable accommodations recognized in the Guidance as within the scope of the ADA, absent undue hardship, include modified or part-time schedules; modification of workplace policies; reassignment to a vacant position and even change in job location. These requests are to be evaluated on a case-by-case basis in determining the existence or absence of undue hardship to the employer in honoring the request.