2010 marks the 20th anniversary of the Americans with Disabilities Act (ADA) signed into law by President George H.W. Bush. A key distinction between the ADA and other anti-discrimination laws is the requirement for employers to make “reasonable accommodation” for the known limitations of an otherwise qualified employee with a disability, unless the requisite accommodation would impose an undue hardship.
The concept of “reasonable accommodation” can only be determined on a case-by-case basis that examines the specific characteristics of each workplace and the nature of an employee’s disability. Here is a step-by-step guideline on the interactive process involved with reasonable accommodation under both the ADA and similar state discrimination laws.
Shared responsibility between employers and employees
Employees and employers have a shared responsibility in resolving accommodation requests. Not only must the employee initiate the accommodation process by making the employer aware of the need for an accommodation, but the employee must also provide relevant details of his/her disability and the reasons that the disability requires the requested accommodation. Finally, the employee must make an initial showing that the requested accommodation is “reasonable.”
Once a qualified disabled employee does request an accommodation, the employer must engage in an interactive process to evaluate whether reasonable accommodations are possible. Employers may demonstrate a good-faith attempt to find a reasonable accommodation for a disabled employee by first analyzing the relevant job and the specific limitations imposed by the disability and then, in consultation with the individual, identify potential effective accommodations. An employee must also work with the employer in good faith to help determine what accommodation is necessary.
The logic behind this division of responsibility is that the employee will typically have better access to information concerning his or her limitations and abilities, whereas an employer will typically have better access to information regarding possible alternative duties or positions available to the disabled employee.
The ADA provides two main areas of reasonable accommodation. The first is making existing facilities used by employees readily accessible to and usable by individuals with disabilities.
The second prong involves job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies and the provision of qualified readers or interpreters.
What is reasonable accommodation?
Courts often describe an accommodation as simply some change or modification in the work environment which allows an individual with a disability to participate on an equal footing with non-disabled employees. There is no precise test for what constitutes a reasonable accommodation, but an accommodation is unreasonable if it requires the employer to eliminate an essential function of the job. Likewise, an employer is not required to assign a disabled employee to another position if one is not available or if doing so would thwart its policy to assign the best-qualified persons.
On the other hand, the ADA itself recognizes “extra time” for a disabled employee to complete a task as reasonable. In one case, a court held that allowing an employee in a wheelchair an extra 15 minutes to return to his work station after lunch was reasonable because the additional time would not require the employer to eliminate its punctuality requirement for the entire workforce.
If such accommodations are possible, then the employer must reasonably accommodate the employee’s request; however, the employer need not provide the exact accommodation requested.
Undue hardship
An employer does not have to provide a reasonable accommodation that would cause an “undue hardship” to the employer. Generalized conclusions will not suffice to support a claim of undue hardship. Instead, 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. Factors to be considered when determining whether an accommodation creates an undue hardship include:
- the nature and net costs of the accommodation needed;
- the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation;
- the number of persons employed at such facility, and the effect on expenses and resources;
- the overall financial resources of the covered entity;
- the overall size of the business of the covered entity with respect to the number of its employees, and the number, type and location of its facilities; and
- the impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business.