The federal Equal Employment Opportunity Commission (EEOC) has issued an "Enforcement Guidance"
that will
help clarify the rights and responsibilities of employers and individuals with
disabilities concerning reasonable accommodation and undue hardship. As it has
done in issuing guidances on other subjects, the EEOC has used frequent examples
based on a hypothetical set of facts in a question and answer format. An EEOC
Guidance does not have the force of law, but courts often defer to such documents
as they resolve employment discrimination issues.
The
EEOC elaborates on what "reasonable accommodation" means and who is entitled to receive it. For example,
the right to reasonable accommodation is available even to part‑time or
probationary employees. The Guidance covers the form and substance of a request
for accommodation and an employer's ability to ask questions and seek documentation
after a request has been made.
Generally,
the disabled individual, or someone on his or her behalf, must inform the employer
that an accommodation is needed, but the request can be made in plain English,
without having to mention the Americans with Disabilities Act (ADA) or use the
correct legal buzzwords. The request should begin an informal dialogue to identify
the person's needs and a suitable accommodation. If the disability or the need
for accommodation is not obvious, the employer may ask for reasonable documentation
to establish the disability and the resulting functional limitations.
There
are three categories of reasonable accommodations. They include modifications
or adjustments to (1) the job application process; (2) the work environment
or the circumstances in which a job is customarily performed; and (3) policies
that set out the benefits and privileges of employment.
The
Guidance emphasizes that an employer should assess the need for accommodations
for the job application process separately from those that may be needed to
perform the job. For example, an employer must avoid any tendency to exclude
a qualified individual from the application process because of speculation by
the employer that it will not be able to provide reasonable accommodations necessary
for satisfactory job performance.
The
Guidance goes into detail about some of the forms of reasonable accommodation,
especially regarding the work environment and how a job is performed. A partial
list of accommodations includes: making existing facilities accessible; job
restructuring; part‑time or modified work schedules; acquiring or modifying
equipment; and reassignment to a vacant position. The Guidance says that an
employer is required to give a vacant position to a disabled employee who requests
reassignment to that position and has the minimum qualifications for it, even
if other more qualified individuals have applied.
There
are limits to what the ADA requires of an employer that receives an accommodation
request. For example, an employer cannot be forced to eliminate an essential
function of a position, such as one of its fundamental duties. Nor does an employer
have to lower qualitative or quantitative production standards that are applied
uniformly to employees with or without disabilities. The employer may choose
among several reasonable accommodations as long as the selected method is effective
in allowing the individual to perform the essential functions of the position.
The
most significant exception to the duty of accommodation is undue hardship on
the employer. The undue hardship issue concerns quantitative, financial, or
other limitations on an employer's ability to provide reasonable accommodation.
The focus is on the resources and circumstances of the particular employer in
relationship to the cost or difficulty of providing a specific accommodation,
but the required considerations go beyond a rigid cost‑benefit analysis.
Excessive costs can lead to a finding of undue hardship, but so can the fact
that a requested accommodation is unduly extensive, substantial, or disruptive,
or the fact that it would fundamentally alter the nature or operation of the
business.
You
can read the Guidance on the EEOC's website at:
www.eeoc.gov/docs/accommodation.html.