Reasonable accommodations have been in many employer conversations lately as they have navigated pandemic-related issues, such as wearing masks, working from home, and mandating or incentivizing vaccinations. Under the Americans with Disabilities Act and Its Amendments Act (ADAAA), private employers and state and local governments must engage with qualified applicants and employees with disabilities in an interactive process to determine whether a reasonable accommodation exists or whether that accommodation would create an undue hardship for the organization. A qualified applicant or employee is a person who, with or without reasonable accommodation, may perform the essential duties and responsibilities of the job.
The goal of a reasonable accommodation is to remove issues in the workplace that keep individuals from performing a job which they could do with some form of accommodation. These issues may be physical difficulties, such as inaccessible equipment, or policies or procedures that affect an individual’s working conditions, such as working hours. There are three basic categories of reasonable accommodations:
- Modifications to a job application process that allows a qualified applicant with a disability to be considered for a position;
- Modifications to the work environment or the way a job is done that allows a qualified applicant or employee with a disability to perform the essential functions of that position; or
- Modifications that allow an applicant or employee with a disability to enjoy equal benefits and privileges of employment just like their co-workers or others without disabilities.
Within these three categories, there are many different types of accommodations that employers may need to provide, such as making existing facilities accessible, job restructuring, reassignment to a vacant position, working from home, modified work schedules, acquiring new equipment or modifying existing equipment, providing qualified readers or interpreters, or adapting tests, training materials, and policies. Employers should note, however, that they are not required to eliminate essential functions or lower work requirements and they do not have to provide personal items that may be needed in accomplishing daily activities on and off the job, such as a prosthetic limb, a wheelchair, eyeglasses, hearing aids, or personal amenities. They also do not have to provide reasonable accommodations for applicants or employees who are illegal drug users or alcoholics.
Step 1 – Identify the Need for an Accommodation
Applicants and employees may request a reasonable accommodation at any time from the point they receive a job offer throughout their tenure in an organization. They should request an accommodation when they know that there is an issue due to a disability that prevents them from competing for a job, performing a job, or gaining equal access to a benefit of employment, such as using the employee lunch room or parking lot. Individuals are especially encouraged to request an accommodation before their job performance suffers or problems occur because employers do not have to retract disciplinary action(s) that occur before they know about a disability. Applicants and employees do not need to use formal language to make a reasonable accommodation request. In fact, they don’t even have to use the words, “reasonable accommodation.” Requests may be verbal or written and in a formal or informal setting. Employers may ask the applicant or employee to complete a form and submit the request in writing, but they cannot ignore a verbal request.
Managers and supervisors should be trained to recognize a reasonable accommodation request, whether it is specific statement regarding a piece of equipment, a needed medical treatment, or a more generalized statement that a workstation is uncomfortable. However, if an employee does not link his or her need with a physical or mental health condition, then it is not a request for a reasonable accommodation under the ADAAA.
Step 2 – Preparation for the Interactive Process
Prior to the interactive process, the human resources representative will need to determine whether there is
supporting medical documentation or other reliable information to determine that the employee has a qualifying disability under the ADAAA. He or she should also speak with the employee’s supervisor who has knowledge of the worksite and the employee’s day-to-day job tasks, review the employee’s job description and essential job duties and responsibilities, and identify nonessential tasks that may be reassigned.
Step 2 – The Interactive Process
If there is a request for a reasonable accommodation, covered employers must enter into an interactive process with that individual. The goal of the process will be to learn what the individual’s desired accommodation(s) may be and determine whether that creates an undue hardship for the organization. If it does, the human resources representative may suggest other accommodations that may meet the requested need. Employers should remember that, according to Title I of the ADA, they may not ask individuals whether they have a disability, or the nature or severity of that disability. They may only ask about the ability to perform specific job functions. Throughout the process, employers should also:
- Respond as quickly as possible. Avoidable delays in responding or implementing an accommodation may result in an ADAAA violation.
- Determine whether the disability poses a direct threat to the employee or other employees, based on medical objective evidence.
- Understand they have the right to request additional medical information or verification when an employee requests an accommodation. If the employee does not provide it or the medical information does not demonstrate a disability, the employer may deny the accommodation request. However, the employee may then provide additional information. If they deny an accommodation as an undue hardship, the employee may suggest other options.
Employees who do not think their employer has a valid reason to deny a request or do not know the reason their request was denied, may appeal the decision with a higher-level manager, with their union, if applicable, with the state enforcing agency, or with the Equal Employment Opportunity Commission (EEOC). Employers should also keep in mind that it is unlawful to retaliate against an employee for opposing employment practices that discriminate based on a disability, or for filing a discrimination charge, testifying, or participating in any way in an investigation or lawsuit under the ADA.
Finally, employers are encouraged to review their record-keeping in light of Health Insurance Portability and Accountability Act (HIPAA) regulations. Medical records are confidential. With limited exceptions, employers must keep confidential any medical information they learn about an employee or an applicant in a secure location. Information may be confidential even if it contains no medical diagnosis or treatment course, and even if it is not generated by a health care professional. An employee’s request for a reasonable accommodation would be considered medical information that must be kept confidential.
For additional information related to reasonable accommodations and the interactive process, please contact us at www.newfocushr.com , or refer to the websites listed below.
Written by: Kathi Walker, SHRM-SCP, PHR
Sr. HR Consultant
Sources of Information:
- The U.S. Department of Labor website (www.dol.gov)
- The Equal Employment Opportunity Commission website (www.eeoc.gov)
- The Equal Employment Opportunity Commission website (www.eeoc.gov)
- The Job Accommodation Network (JAN) (https://askjan.org)