Knowing how to respond to a request for disability accommodation under the Americans with Disabilities Act (ADA) and/or any applicable state or local laws and initiate the reasonable accommodation process is crucial for employers. After all, relatively new, persistent health problems are emerging that can qualify as disabilities under federal law. For example, the federal government now recognizes “long COVID” as a disability under the ADA, the Rehabilitation Act of 1973 and the Affordable Care Act (ACA). For the benefit of employers and workers, federal guidance clarifies when COVID-19 qualifies as a disability.
That being the case, employers of all sizes are more likely than ever before to receive an employee request for an accommodation of their disability. Understanding and executing an effective reasonable accommodation process benefits the entire company. In essence, the reasonable accommodation process ensures equal employment opportunities for all applicants, interviewees, and employees. Therefore, employers should be aware of the basic steps in the reasonable accommodation process.
What Is a Reasonable Accommodation?
A “reasonable accommodation,” as defined by the ADA and applicable state or local laws, is a modification to a process, job role, or work environment to help an individual with a physical or mental impairment perform the essential functions of a job. Essential functions are the basic job duties that a worker must perform. In other words, the essential functions can serve as the “why” a job was created. Additionally, a reasonable accommodation should allow qualifying individuals to benefit from other equal employment opportunities like pay raises or promotions.
Disability Discrimination Laws Cover Most Employers
All businesses that are subject to a state, federal, or local law regarding disability discrimination must comply with their legal duty to reasonably accommodate qualified individuals with a disability. Indeed, such anti-discrimination laws cover the majority of employers. Coverage of the law breaks down thusly:
- Employers with 15 or more employees must comply with the ADA, in addition to any applicable state or local laws.
- State or local law covers those with less than 15 employees. (Laws vary by state, city, or county.)
On the whole, employers covered by state, local, or federal antidiscrimination laws must provide such accommodations upon request. This applies whether the individual has or is “regarded as having” a qualifying condition. There are exceptions for instances where the requested modification poses an “undue hardship” for the business.
Reasonable Accommodation Process and the ADA
The ADA forbids discrimination in the workplace and other sectors of society against people living with disabilities. Specifically, the ADA established the reasonable accommodation process for three primary reasons:
- Ensuring that all applicants are awarded an equal opportunity during the hiring process.
- Allowing all workers to carry out essential functions of a job role despite having a disability.
- Making sure all employees, including those with a disability, can enjoy equal employment privileges and benefits.
Who Qualifies for Reasonable Accommodations?
According to the U.S. Centers for Disease Control (CDC), 1 in 4 Americans has a condition or impairment classified as a disability. The ADA reasonable accommodation process is intended to help individuals with qualifying disabilities. Generally, qualifying disabilities include physical or mental impairments that restrict individuals from performing one or more major life activities. Limitations can involve issues that interfere with an individual’s sight, movement, speech, hearing, or breathing. In addition, an ailment affecting someone’s bodily capability can also impact a person’s disability status. Issues affecting bodily functions related to the digestive, neurological, respiratory, or immune system may also qualify.
Protection from Employment Discrimination
Thus, the ADA protects qualified employees or candidates with disabilities from all forms of employment discrimination. Specifically, qualified individuals with disabilities are those who:
- possess the education, skill, and experience required for a job; and
- can perform the “essential functions” of the position with or without a reasonable accommodation.
Furthermore, the ADA covers those individuals who may not have a disability but are “regarded as” having a disability. People who are “regarded as” having a disability are individuals who:
- indeed, have a condition, but are not restricted from performing major life activities;
- have a condition, but are only limited due to people’s judgments and perceptions regarding their disability; or
- do not have a disability but are treated as having one.
Recognizing a Reasonable Accommodation Request
In reality, an individual may request reasonable accommodation at any point during the application, interview, hiring, or employment period. In doing so, they may use “plain English.” Thus, they do not have to specifically mention the ADA or use the phrase “reasonable accommodation.” Nor does the request have to be in writing. For example, an employee may simply say “I’m having trouble getting to work at my scheduled starting time because of medical treatments I’m undergoing.”
Five Steps in the Reasonable Accommodation Process
Overall, the individual’s initial request for accommodation begins the reasonable accommodation process. Plainly speaking, the reasonable accommodation process is an informal, interactive process of clarification between the individual and the employer. Employers must abide by the following steps when evaluating and responding to a request for reasonable accommodation.
1. Determine if the individual’s medical condition meets the definition of a disability.
During the reasonable accommodation process, the employer may ask relevant questions that will assist in making informed decisions. An employer may ask a current employee for reasonable documentation to establish that they have an ADA (or state and local law) qualifying disability. Additionally, the employee may be “regarded as” having a disability. Note, however, that depending on the situation, employers may be limited in when and how they may ask relevant questions.
- During the application and interviewing stage:
- Employers should not ask questions that would reveal the disability of an applicant or ask only an applicant with a disability to take a medical exam.
- An employer may not bluntly ask job applicants if they have a disability (or about the nature of an obvious disability).
- After an applicant is offered a job:
- The employer may condition the job offer on the applicant answering specific disability-related questions or successfully passing a medical exam. However, employers must require these same questions and medical exams of every applicant who applies for the same type of job.
In general, an employee or job applicant may show they have a disability in one of three ways:
- They have a physical or mental condition that substantially limits a major life activity, such as walking, talking, seeing, hearing, learning, or operation of a major bodily function.
- The person has a history of disability. For example, if they have cancer that is in remission.
- They’re subject to an adverse employment action and are believed to have a physical or mental impairment that is not transitory, meaning lasting or expected to last 6 months or less, and minor, even if they do not have such an impairment.
2. Identify the issues that their disability creates for them at the workplace.
At this point, the employer should engage the employee in an informal, interactive discussion. The purpose of this discussion is to identify any workplace barriers due to their disability. In the end, information gathered during this discussion will assist the employer in implementing an effective reasonable accommodation to eliminate the barriers. Undoubtedly, the exact nature of the dialogue during the reasonable accommodation process will vary from case to case.
- In many cases, both the disability and the type of reasonable accommodation needed will be obvious.
- Otherwise, the employer may need to ask questions about the nature of the disability, including the employee’s functional limitations relating to their position.
The employee may make suggestions to help the employer determine the type of reasonable accommodation to provide. However, the employee does not have to be able to specify the exact accommodation they need. Nonetheless, as a part of the reasonable accommodation process, they do need to describe the problems the workplace barrier creates.
3. Determine an effective reasonable accommodation.
Employers should evaluate accommodations on a case-by-case basis. In general, effective accommodations need to allow the employee to perform the functions of their job and allow them to access job opportunities such as job training and company events. The reasonable accommodation process should yield an effective solution. Common reasonable accommodations include:
- Modifying the workplace or workstation to reduce barriers (for example, moving a work area closer to an accessible entrance, break room, restroom, office equipment, or ADA-compliant parking spaces).
- Job restructuring or reassignment (like reallocating or redistributing marginal, or non-essential, job functions).
- Modified work schedules (such as adjusting arrival or departure times).
- Employee leave (using leave for specific reasons like to obtain medical treatment).
- Updated workplace equipment (including screen readers for the visually impaired).
- Modified workplace policies (like suspending a “No Food. No Drink” policy for a diabetic, insulin-dependent individual).
If one or more accommodations work, the employer may choose the accommodation that is less costly or easier to implement.
4. Ensure that the suggested reasonable accommodation will assist the employee in eliminating the workplace barrier to performing their job and accessing job opportunities.
If the suggested reasonable accommodation is ineffective to assist the employee with performing job functions or accessing opportunities, the employer should offer an alternative. At this point, an employer may revisit the informal, interactive discussion portion of the reasonable accommodation process. In the end, the reasonable accommodation needs to eliminate the barrier to employment or the benefits thereof.
5. Finally, make sure the requested accommodation does not cause undue hardship to the business.
A requested accommodation should not cause undue hardship. Undue hardship occurs when a requested accommodation would be too difficult or too expensive for the employer to provide. This is determined by an employer’s size, financial resources, and the needs of the business. Additionally, accommodations that pose a risk of significant harm to the employee or others may constitute undue hardship. Undue hardship must be based on an individualized assessment of current circumstances. Specifically, factors in determining undue hardship include:
- Nature and cost of the accommodation;
- Financial resources of the facility fulfilling the reasonable accommodation request;
- Number of people employed at the facility;
- Its effect on expenses and resources of the facility;
- The overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility is part of a larger entity);
- Type of operation of the employer, including structure, functions, and geography; and
- The accommodation’s impact on facility operations.
Important Note on Undue Hardship
Note that an employer may not refuse to provide reasonable accommodation just because it involves some cost. In fact, generalized conclusions do not suffice to support a claim of undue hardship. Finally, fears, prejudices, or the accommodation’s effect on employee morale are not undue hardship. Importantly, employers should consult with an attorney before determining possible undue hardship. Alternatively, they may consider offering an alternative reasonable accommodation that would not impose undue hardship.
Why Should I Follow the Reasonable Accommodation Process?
The ADA prohibits discrimination against individuals with disabilities in all areas of public life. Equally, most state and local laws require employers to accommodate disabled individuals in order to prevent discrimination. Additionally, the Rehabilitation Act of 1973 states that discriminating against a federal employee or job candidate based on a recognized disability is illegal. Disability discrimination accounts for over 30% of all charges filed with the U.S. Equal Employment Commission (EEOC). Notably, that number increases annually.
Disability discrimination claims could lead to costly lawsuits brought about by the alleged victim or a government agency acting on their behalf. Understanding and following the reasonable accommodation process, however, can prevent potentially costly mistakes. Most importantly, understanding and executing an effective reasonable accommodation process benefits the entire company. In essence, it ensures equal employment opportunity for all applicants, candidates, and employees.
The Reasonable Accommodations Compliance eLearning Program for Employers and Managers
To help business owners and their managers comply with reasonable accommodation laws, Personnel Concepts has introduced a comprehensive, interactive Reasonable Accommodations Compliance eLearning Program. This online eLearning module includes self-guided training on the reasonable accommodation process. Employers and managers also learn how to correctly handle disability accommodation requests. Markedly, employers can use completion of the self-guided training as a defense in the event of a disability discrimination claim or an investigation by an enforcing government agency. In addition, employers receive links to digital resources (including forms, checklists, and a sample policy). Finally, users gain access to a digital, standalone interactive assessment tool that to use whenever they receive a qualifying request. The interactive assessment tool conveniently guides employers through the reasonable accommodation process.