From: Subject: Small Employers And Reasonable Accommodation Date: Fri, 18 Jul 2008 15:34:59 -0400 MIME-Version: 1.0 Content-Type: multipart/related; type="text/html"; boundary="----=_NextPart_000_0000_01C8E8EB.D6C62E90" X-MimeOLE: Produced By Microsoft MimeOLE V6.00.2900.5512 This is a multi-part message in MIME format. ------=_NextPart_000_0000_01C8E8EB.D6C62E90 Content-Type: text/html; charset="Windows-1252" Content-Transfer-Encoding: quoted-printable Content-Location: http://www.eeoc.gov/facts/accommodation.html Small Employers And Reasonable = Accommodation =0A= The U.S. Equal Employment Opportunity = Commission=20

Small Employers And Reasonable Accommodation

Introduction

The Americans with = Disabilities=20 Act (ADA)=20 requires an employer with 15 or more employees to provide reasonable=20 accommodation for individuals with disabilities, unless it would cause = undue=20 hardship. A reasonable accommodation is any change in the work = environment or in=20 the way a job is performed that enables a person with a disability to = enjoy=20 equal employment opportunities. There are three categories of = "reasonable=20 accommodations":

  1. changes to = a job application process=20
  2. changes to the work environment, or to the = way a=20 job is usually done=20
  3. changes=20 that enable an employee with a disability to enjoy equal = benefits and=20 privileges of employment (such as access to training). =

Although many individuals with disabilities can apply for and perform = jobs=20 without any reasonable accommodations, workplace barriers may keep = others from=20 performing jobs which they could do with some form of accommodation. = These=20 barriers may be physical obstacles (such as inaccessible facilities or=20 equipment), or they may be procedures or rules (such as rules concerning = when=20 work is performed, when breaks are taken, or how job tasks are = performed).=20 Reasonable accommodation removes workplace barriers for individuals with = disabilities.

This guide answers some of the key questions facing small businesses = in=20 connection with reasonable accommodations. It explains the obligations = of both=20 employers and individuals with disabilities, and reviews the limits on = how far=20 employers must go in providing reasonable accommodations.

This guide is adapted from the Equal Employment Opportunity = Commission's Enforcement = Guidance=20 on Reasonable Accommodation and Undue Hardship Under the ADA. Small = employers=20 wishing to learn more about reasonable accommodation and undue hardship = should=20 call 1-800-669-3362 to request a free copy of the = Enforcement=20 Guidance, or review it at EEOC's = website,=20 http://www.eeoc.gov/.

Requesting Reasonable Accommodation

  1. How= =20 must an individual request a reasonable accommodation?=20

    The individual must let the employer know that s/he needs an = adjustment or=20 change at work for a reason related to a medical condition. An = individual may=20 use "plain English" and need not mention the ADA or use the = phrase=20 "reasonable accommodation." Requests for reasonable accommodation do = not need=20 to be in writing, though an employer may choose to write a memorandum = or=20 letter confirming the request.

  2. What must=20 an employer do after receiving a request for reasonable=20 accommodation?=20

    When the disability and/or the need for accommodation is = not=20 obvious, the employer may ask the individual for = reasonable=20 documentation about his/her disability and functional=20 limitations.

    The employer and the individual with a disability should = engage in=20 an informal process to clarify what the individual needs and = identify=20 the appropriate reasonable accommodation. The employer may ask the = individual=20 questions that will enable it to make an informed decision about the = request.=20 This includes asking what type of reasonable accommodation is = needed.

    There are extensive public and private resources to help employers = and=20 individuals with disabilities who are not familiar with possible=20 accommodations. (See the Appendix to this guide for a resource = directory to=20 help identify reasonable accommodations.)

  3. Must an=20 employer provide the reasonable accommodation that the = individual=20 wants?=20

    The employer may choose among reasonable accommodations as = long as=20 the chosen accommodation is effective (i.e., it removes the workplace = barrier=20 at issue). The employer may offer alternative suggestions for = reasonable accommodations to remove the workplace barrier in question. = If=20 there are two possible reasonable accommodations, and one costs more = or is=20 more difficult to provide, the employer may choose the one that is = less=20 expensive or easier to provide, as long as it is effective.

  4. How= =20 quickly must an employer respond to a request for reasonable=20 accommodation?=20

    An employer should respond promptly to a request for reasonable=20 accommodation. If the employer and the individual with a disability = need to=20 engage in an interactive process, this too should proceed as quickly = as=20 possible. Similarly, the employer should act promptly to provide the=20 reasonable accommodation.

Types Of Reasonable Accommodations

There are many different kinds of reasonable accommodations. Below is = information on some of them.

  1. Is=20 restructuring a job a reasonable accommodation?=20

    Yes. This includes: (1) shifting responsibility to other employees = for=20 minor job tasks that an employee is unable to perform because of a = disability;=20 and (2) altering when and/or how a job task is performed. If an = employee is=20 unable to perform a minor job task because of a disability, an = employer can=20 require the employee to perform a different minor job function in its=20 place.

  2. Is=20 providing leave necessitated by an employee's = disability a=20 form of reasonable accommodation? 1=20

    Yes, absent undue hardship, providing unpaid leave = is a=20 form of reasonable accommodation. However, an employer does = not have=20 to provide more paid leave than it provides to other = employees.

  3. May an=20 employer apply a "no-fault" leave policy, under which = employees are automatically terminated after they have been on leave = for a=20 certain period of time, to an employee with a disability who needs = additional=20 leave?=20

    If an employee with a disability needs additional unpaid leave as a = reasonable accommodation, the employer must provide the employee with = the=20 additional leave even if it has a =93no-fault=94 policy. An employer, = however,=20 does not need to provide leave if: (1) it can provide an effective=20 accommodation that allows the person to keep working, or (2) it can = show that=20 granting additional leave would cause an undue hardship.

  4. When an=20 employee requests leave as a reasonable accommodation, may an employer = provide=20 an accommodation that requires him/her to remain on the = job=20 instead?=20

    Yes, if the employer's proposed reasonable accommodation would be = effective=20 and eliminate the need for leave. Accordingly, an employer may = reallocate=20 minor job tasks or provide a temporary transfer instead of leave, so = long as=20 the employee can still address his/her medical needs.

  5. Is a=20 modified or part-time schedule a reasonable=20 accommodation?=20

    Yes, absent undue hardship. A modified schedule may involve = adjusting=20 arrival or departure times, providing periodic breaks, altering when = certain=20 job tasks are performed, allowing an employee to use accrued paid = leave, or=20 providing additional unpaid leave.

  6. Is it a=20 reasonable accommodation to modify a workplace policy = because=20 of an employee's disability?=20

    Yes. For example, granting an employee time off from work or an = adjusted=20 work schedule as a reasonable accommodation may involve modifying = leave or=20 attendance procedures or policies. However, reasonable accommodation = only=20 requires that the employer modify the policy for an employee with a=20 disability. The employer may continue to apply the policy to all other = employees.

  7. Does an employer have to reassign to a vacant = position an=20 employee who can no longer perform his/her job because of a = disability?=20

    Yes, unless the employer can show that it would be an undue = hardship. The=20 following criteria apply to reassignment:

    An = employee=20 must be "qualified" for the new position. This means that s/he: = (1)=20 satisfies the skill, experience, education, and other job-related = requirements=20 of the position, and (2) can perform the primary job tasks of the new=20 position, with or without reasonable accommodation. The employer does = not have=20 to assist the employee to become qualified.

    An employer does not have to bump other employees or create a = position. Nor=20 does an employer have to promote the employee.

    Reassignme= nt=20 should be to a position that is equal in pay and = status=20 to the position that the employee held, or to one that is as close as = possible=20 in terms of pay and status if an equivalent position is not = vacant.

  8. Does a=20 reasonable accommodation include changing a person's=20 supervisor?=20

    No. The ADA may,=20 however, require that supervisory methods, such as the method of = communicating=20 assignments, be altered as a form of reasonable = accommodation.

Other Reasonable Accommodation Issues

  1. Are there certain things that are not considered = reasonable=20 accommodations and are therefore not required?=20
  2. May an=20 employer tell other employees that someone is receiving a = reasonable=20 accommodation?=20

    No, because this usually amounts to a disclosure that the = individual has a=20 disability. The ADA=20 specifically prohibits the disclosure of medical information except in = certain=20 limited situations, which do not include disclosure to coworkers.

    An employer may certainly respond to a question from an employee = about why=20 a coworker is receiving what is perceived as "different" or "special"=20 treatment by emphasizing its policy of assisting any employee who = encounters=20 difficulties in the workplace. The employer also may find it helpful = to point=20 out that many of the workplace issues encountered by employees are = personal,=20 and that, in these circumstances, it is the employer's policy to = respect=20 employee privacy. An employer may be able to make this point = effectively by=20 reassuring the employee asking the question that his/her privacy would = similarly be respected if s/he found it necessary to ask the employer = for some=20 kind of workplace change for personal reasons. Employers might also = find it=20 helpful to provide all employees with information about various laws = that=20 require employers to meet certain employee needs (e.g., the ADA and the Family = and=20 Medical Leave Act), while also requiring them to protect the privacy = of=20 employees.

  3. Ma= y an=20 employer ask whether a reasonable accommodation is needed = when an=20 employee with a disability has not asked for one?=20

    If an employer knows that an employee has a disability, it may ask = whether=20 s/he needs a reasonable accommodation when it reasonably believes that = the=20 employee may need an accommodation. An employer also may ask an = employee with=20 a disability who is having performance or conduct problems if s/he = needs=20 reasonable accommodation.

Undue Hardship:
Limits On Providing Reasonable=20 Accommodations

An employer never has to provide any reasonable accommodation that = causes=20 undue hardship, meaning significant difficulty or = expense.=20 Undue hardship refers not only to financial difficulty, but to = reasonable=20 accommodations that are unduly extensive or disruptive, or those that = would=20 fundamentally alter the nature or operation of the business.

Every request for reasonable accommodation should be evaluated = separately to=20 determine if it would impose an undue hardship, taking into account:

If cost is an issue, an employer should determine whether funding is=20 available from an outside source, such as a state rehabilitation agency, = to pay=20 for all or part of the accommodation. In addition, the employer should = determine=20 whether it is eligible for certain tax credits or deductions to offset = the cost=20 of the accommodation. Also, to the extent that a portion of the cost of = an=20 accommodation causes undue hardship, the employer should ask the = individual with=20 a disability if s/he will pay the difference.

An = employer=20 cannot claim undue hardship based on employees' (or customers') fears or = prejudices, or because providing a reasonable accommodation might = have a=20 negative impact on employee morale. Employers, however, may claim undue = hardship=20 where a reasonable accommodation would be unduly disruptive to = other=20 employees' ability to work.

  1. Must an=20 employer modify the work hours of an employee with a disability if = doing so=20 would prevent other employees from performing their = jobs?=20

    No. If modifying one employee's work hours (or granting leave) = would=20 prevent other employees from doing their jobs, then the significant = disruption=20 to the operations of the employer constitutes an undue hardship.

  2. Can an=20 employer deny a request for leave when an employee cannot = provide a=20 fixed date of return?=20

    In some situations, an employee may be able to provide only an=20 approximate date of return because treatment and = recuperation=20 do not always permit exact timetables. If an employer is able to show = that the=20 lack of a fixed return date imposes an undue hardship, then it can = deny the=20 leave. Undue hardship could result if the employer can neither plan = for the=20 employee's return nor permanently fill the position. In other = situations, an=20 employer may be able to be flexible.

Footnote:

1 Employers = who are=20 covered by the Family and Medical Leave Act (FMLA) may have = obligations under=20 that law, as well as the ADA. For more = information=20 on how these two laws apply to leave and modified schedules, employers = may=20 consult the EEOC's Enforcement = Guidance=20 on Reasonable Accommodation and Undue Hardship Under the ADA and the = EEOC's Fact Sheet on the = FMLA and the ADA.

APPENDIX

Resources For Locating Reasonable Accommodations

U.S. Equal Employment Opportunity=20 Commission
1-800-669-3362 (Voice) 1-800-800-3302 (TT)

The EEOC's=20 Publication Center has many free documents on the Title I employment = provisions=20 of the ADA, = including=20 both the statute, 42 U.S.C. =A7 12101 et seq. (1994), and the = regulations, 29=20 C.F.R. =A7 1630 (1997). In addition, the EEOC has = published a=20 great deal of basic information about reasonable accommodation and undue = hardship. The two main sources of interpretive information are: (1) the=20 Interpretive Guidance accompanying the Title I regulations (also known = as the=20 "Appendix" to the regulations), 29 C.F.R. pt. 1630 app. =A7=A7 = 1630.2(o), (p),=20 1630.9 (1997) , and (2) A Technical Assistance Manual on the = Employment=20 Provisions (Title I) of the Americans with Disabilities Act III, = 8 FEP=20 Manual (BNA) 405:6981, 6998-7018 (1992). The Manual includes a 200-page = Resource=20 Directory, including federal and state agencies, rehabilitation agencies = (that=20 may be able to pay some/all of the costs for certain reasonable = accommodations),=20 and disability organizations that can provide assistance in identifying = and=20 locating reasonable accommodations.

The EEOC=20 also has discussed issues involving reasonable accommodation in the = following=20 guidances and documents: (1) Enforcement Guidance: Preemployment=20 Disability-Related Questions and Medical Examinations at 5, 6-8, 20, = 21-22, 8=20 FEP Manual (BNA) 405:7191, 7192-94, 7201 (1995); (2) Enforcement = Guidance:=20 Workers' Compensation and the ADA at 15-20, 8 FEP = Manual=20 (BNA) 405:7391, 7398-7401 (1996); (3) Enforcement Guidance: The = Americans with=20 Disabilities Act and Psychiatric Disabilities at 19-28, 8 FEP Manual = (BNA)=20 405:7461, 7470-76 (1997); and (4) Fact Sheet on the Family and Medical = Leave=20 Act, the Americans with Disabilities Act, and Title VII of the Civil = Rights Act=20 of 1964 at 6-9, 8 FEP Manual (BNA) 405:7371, 7374-76 (1996).

Finally, the EEOC has a = poster that=20 employers and labor unions may use to fulfill the ADA's posting = requirement.

All of the above-listed documents, with the exception of the ADA Technical = Assistance=20 Manual and Resource Directory and the poster, are also available through = the=20 Internet at http://www.eeoc.gov.

U.S. Department of Labor (To obtain information on = the=20 Family and Medical Leave Act)

To request written materials: 1-800-959-3652 (Voice) 1-800-326-2577=20 (TT)
To ask questions: (202) 219-8412 (Voice)

Internal Revenue Service (For information on tax = credits and=20 deductions for providing certain reasonable accommodations)

(202) 622-6060 (Voice)

Job Accommodation Network (JAN)
1-800-232-9675=20 (Voice/TT)
http://janweb.icdi.wvu.edu/

A service of the President's Committee on Employment of People with=20 Disabilities. JAN = can=20 provide information, free-of-charge, about many types of reasonable=20 accommodations.

ADA=20 Disability and Business Technical Assistance Centers (DBTACs)
1-800-949-4232=20 (Voice/TT)

The DBTACs=20 consist of 10 federally funded regional centers that provide = information,=20 training, and technical assistance on the ADA. Each center = works with=20 local business, disability, governmental, rehabilitation, and other = professional=20 networks to provide current ADA information and=20 assistance, and places special emphasis on meeting the needs of small=20 businesses. The DBTACs can=20 make referrals to local sources of expertise in reasonable = accommodations.

Registry of Interpreters for the Deaf
(301) = 608-0050=20 (Voice/TT)

The Registry offers information on locating and using interpreters = and=20 transliteration services.

RESNA Technical Assistance Project
(703) 524-6686 = (Voice)=20 (703) 524-6639 (TT)
http://www.resna.org/hometa1.ht= m

RESNA, the Rehabilitation Engineering and Assistive Technology = Society of=20 North America, can refer individuals to projects in all 50 states and = the six=20 territories offering technical assistance on technology-related services = for=20 individuals with disabilities. Services may include:

This page was last modified on March 1, 1999.

3DHome=20 Return to Home = Page

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