Reasonable accommodations are adjustments or modifications that enable people with disabilities to perform the essential functions of a job efficiently and productively. In this way, they are important retention and advancement tools. Reasonable accommodations may also be necessary to assist a person with a disability to apply and interview for a job.
Accommodations vary depending upon the nature of the job and the needs of the individual applicant or employee. Not all people with disabilities (or even all people with the same disability) will require the same accommodation or any accommodation. Furthermore, research by the Job Accommodation Network (JAN) indicates that more than half of accommodations cost nothing at all.
A best practice related to accommodations is the establishment of a centralized accommodation program (CAP), which consolidates in a single office or location subject matter expertise necessary to assess, evaluate and select effective and meaningful accommodations. A CAP may also consolidate funding streams for some or all accommodations at a level removed from the department or unit in which the individual is working.
Under Title I of the Americans with Disabilities Act (ADA), a reasonable accommodation is a modification or adjustment to a job, the work environment, or the way things are usually done during the hiring process. These modifications enable an individual with a disability to have an equal opportunity not only to get a job but successfully perform their job tasks to the same extent as people without disabilities. The ADA requires reasonable accommodations as they relate to three aspects of employment:
- Ensuring equal opportunity in the application process
- Enabling a qualified individual with a disability to perform the essential functions of a job
- Making it possible for an employee with a disability to enjoy equal benefits and privileges of employment
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Definition and Legal Basis
So you can have an overview of what reasonable accommodation entails, let’s begin with its definition. The U.S. Department of Education defines reasonable accommodation as a change or adjustment to the way things usually are in order to attend the needs of individuals with disabilities. The reason for a change of adjustment is to ensure individuals with disabilities have the same opportunities as others to participate in job performance, the purchase of goods and services, and the services and programs the government enables. The legal basis for reasonable accommodation is mainly under the Americans with Disabilities Act (or ADA), which was signed into law in 1990.
Who May Need It?
The definition of reasonable accommodation probably makes you wonder who are considered individuals with disabilities. It is important to understand that the ADA defines disability as ‘a physical or mental impairment that substantially limits one or more major life activities.’ While the law does not specify a list of physical or mental impairments, they include but are not limited to, autism, the inability to walk, chronic diseases, memory loss, hearing loss, blindness, etc. Organizations that specialize in disabilities have very long lists of more physical and mental impairments you may want to check.
Accommodations are sometimes referred to as “productivity enhancers”. Reasonable accommodations should not be viewed as “special treatment”, and they often benefit all employees. For example, facility enhancements such as ramps, accessible restrooms, and ergonomic workstations benefit more than just employees with disabilities. Examples of reasonable accommodations include making existing facilities accessible; job restructuring; part-time or modified work schedules; acquiring or modifying equipment; changing tests, training materials, or policies; and providing qualified readers or interpreters. Here are some more examples. Many job accommodations cost very little and often involve minor changes to a work environment, schedule or work-related technologies:
- Installing a ramp or modifying a restroom
- Modifying the layout of a workspace
Accessible and assistive technologies
- Ensuring computer software is accessible
- Providing screen reader software
- Using videophones to facilitate communications with colleagues who are deaf
- Providing sign language interpreters or closed captioning at meetings and events
- Making materials available in Braille or large print
- Modifying a policy to allow a service animal in a business setting
- Adjusting work schedules so employees with chronic medical conditions can go to medical appointments and complete their work at alternate times or locations
“Seems reasonable on its face…”
This piece of description directs us to view the determination from a bird’s eye view. It intends for us to review the accommodation being requested without weighing all of the details of the request or how the request will impact the employer. A helpful method I suggest is to look at the situation as though you are an outsider looking in. For instance, would you think it would be reasonable for someone with a sleeping disorder to work a consistent shift rather than a rotating shift that exacerbates their sleeping limitations? If it seems reasonable from an outsider’s perspective, then it is a good indication that it meets this piece of the description.
Must be effective in meeting the needs of the individual
While the previous portion directs us not to consider the details of the request, this part discusses how the accommodation being reviewed needs to genuinely be an accommodation that will be beneficial to the individual’s disability-related needs. This normally will be obvious for accommodations that are specifically requested by the individual or their physician, as they wouldn’t be suggesting them if they didn’t believe they would be effective. However, employers have the right to review options. So, if options other than the requested accommodation are being considered, remember that employers have an obligation to put forth a good faith effort to provide an accommodation that will be genuinely beneficial to the individual in overcoming the workplace barrier involved.
Duty to Meet and Confer
Employees are required to be able to perform all of their essential job functions, with or without reasonable accommodation. If an employer becomes aware that an employee may have some kind of disability, they should speak with the employee to see if they need an accommodation. Employers should not ask an employee what medical conditions they have – they should instead ask, “Do you need any accommodations to perform your job duties?” Employers are not allowed to ask an employee to disclose what medical conditions they have, but they can and should ask whether any accommodations may be needed.
The primary purpose behind the ADA is to require that employees and employers meet and confer to discuss what accommodations the employee may need. Employers must promptly meet and confer with an employee as soon as they learn of the need for any accommodation. Both parties should be creative in identifying all of the accommodations that would allow the employee to perform their job duties. A great resource for employers to use is the Job Accommodation Network.
If an employer is not willing to give a particular accommodation, it should first consult an experienced employment attorney. The ADA is a complex and ever-evolving area of the law. After consulting with an attorney, if the employer still intends to deny a requested accommodation, it should tell the employee, in writing, why it is not willing to grant the accommodation. The employer should explain why the accommodation is not necessary or is otherwise an undue burden. Denying accommodation can result in liability to the employer. Be careful.
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Many employees request to telecommute as a reasonable accommodation. Employers have a right to ask the employee why telecommuting is a reasonable and necessary accommodation. Employers, however, should be careful not to ask the employee what medical conditions they have, but instead, focus on asking why telecommuting is a reasonable accommodation.
Many employees have anxiety and depression. If a medical provider provides documentation that telecommuting would help the employee with their anxiety or depression, an employer should be careful in deciding whether to allow for telecommuting.
If an employer does not want to allow for telecommuting, it needs to be able to demonstrate that the presence in the office is an essential job function. Alternatively, employers must be able to demonstrate that allowing for telecommuting would be an “undue burden.” To prove an accommodation would be an undue burden, an employer must generally show that it would be a financial or other hardship. Individuals who primarily spend their time emailing and making phone calls can sometimes do their job from home. This may make it difficult for an employer to show that telecommuting is an undue burden. Employers can require that telecommuting employees maintain certain levels of productivity or are available during a set schedule. Each case is different and requires a fact-specific analysis, but telecommuting may be a reasonable accommodation if supported by a medical provider and not an undue burden. Employers should also be careful to maintain the same telecommuting standards for all employees to avoid claims of discrimination. Telecommuting presents a host of issues for employers. Decisions as to telecommuting should be given careful thought and deliberation.
Modified Work Schedule
Some employees ask for a modified work schedule. Some ask to be able to arrive late or leave early to attend doctor’s appointments. Others ask to work a reduced schedule. Leaving early or arriving late to attend a medical appointment is almost certainly going to be considered a reasonable accommodation. If the employer is subject to FMLA, then both FMLA and ADA must be considered when modifying a work schedule.
If an employee requests to work fewer hours, that may be a reasonable accommodation depending on the employee’s job functions and the employer’s ability to provide such accommodation. Some courts have held that being able to work overtime is an essential job function. Others have been less receptive to the idea that the employee must work a certain schedule.
The law is unclear and always evolving. Get advice early on. Carefully consider all options. Be creative and thoughtful. Document all decisions. Ensure all policies and agreements with employees are carefully drafted. A bit of upfront care can avoid an expensive lawsuit.
When does a reasonable accommodation become unreasonable?
The answer to this question can vary depending on what source you are drawing information from. Some sources say that if a particular accommodation is not effective for the individual’s specific needs or if the accommodation poses an undue hardship for the company, the accommodation is still considered a “reasonable” accommodation. They see it as something that describes what an employer might have to do to meet the disability-related needs of any given individual. However, other sources say that an accommodation that poses an undue hardship on an employer or an accommodation that is not effective at meeting the individual’s disability-related needs is an “unreasonable” accommodation. The important thing to keep in mind here is that in most cases, this distinction may not matter. In the event of an EEOC complaint, if the individual can show that an effective form of accommodation was possible, then the employer would have to prove why they did not provide that accommodation objectively.
Under the General Principles section of the EEOC document titled, Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, it states:
“A modification or adjustment is “reasonable” if it “seems reasonable on its face, i.e., ordinarily or in the run of cases;” this means it is “reasonable” if it appears to be “feasible” or “plausible.” An accommodation also must be effective in meeting the needs of the individual. In the context of job performance, this means that a reasonable accommodation enables the individual to perform the essential functions of the position. Similarly, reasonable accommodation enables an applicant with a disability to have an equal opportunity to participate in the application process and to be considered for a job. Finally, a reasonable accommodation allows an employee with a disability an equal opportunity to enjoy the benefits and privileges of employment that employees without disabilities enjoy.”
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Equal opportunity to enjoy the benefits and privileges of employment
It is common for people to understand the importance of providing accommodations to enable an employee to perform the essential functions of the position. After all, an employee may not be qualified for the position if he cannot perform the essential functions of that position with or without reasonable accommodations. Despite this importance, it is not the only situation where accommodations need to be considered. Individuals with disabilities have the right to partake in all aspects of employment, from application to advancement, which involves much more than the day to day duties that they must perform in their position. They also have the right to attend and enjoy things like employer-sponsored events or company parties. So, it is important to be mindful of the fact that accommodations must be provided to enable someone with a disability to be able to enjoy all of the various benefits and privileges of employment. Even if it is something as simple as modifying the menu of a company-sponsored dinner or choosing a different venue to have that dinner within.