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EEOC Issues ADA 'Accommodation' Guidance

March 22, 1999
On March 1, 1999, the Equal Employment Opportunity Commission issued a comprehensive policy guidance on reasonable accommodation and undue hardship under the Americans with Disabilities Act.

Requesting reasonable accommodation.
According to the guidance, the burden generally rests with the employee to alert his or her employer of the existence of a disability and the need for accommodation. The request may be in "plain English," and need not explicitly mention the ADA or the term "reasonable accommodation."

If an employee does not request accommodation, the employer is not required to speculate about the employee’s need for accommodation, unless the employer:

  • knows that the employee has a disability,
  • knows, or has reason to know, that the employee is experiencing disability-related workplace problems, and
  • knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation. One example would be an employee with mental retardation whose unaccommodated disability causes job performance problems.

Medical documentation.
In some instances, an employer will want to verify the existence of a qualifying disability before determining an accommodation request. When an employee’s disability is not obvious, the employer has the right to request reasonable documentation that the employee has a qualifying disability and that there is a need for reasonable accommodation. However, in most situations an employer cannot request an employee’s medical records because the records are likely to contain information unrelated to the disability at issue and the need for accommodation.

Significantly, the guidance restricts an employer from confirming an employee’s disability status by requiring the employee to visit an employer-chosen health care provider. The employee may refuse to consent to a second medical examination so long as the employee’s doctor specifies the existence of an ADA disability and the need for reasonable accommodation.

Collective bargaining agreements.
An employer may not claim that an accommodation is unreasonable simply because the accommodation would violate a collective bargaining agreement. According to the guidance, the employer and its union must in good faith negotiate a variance to the collective bargaining agreement so that the employer may provide a reasonable accommodation, except if the proposed accommodation would unduly burden the expectations of other workers. Among the relevant undue-burden factors to consider are the duration and severity of any adverse effects on other employees.

Job restructuring.
Although employers may be required to eliminate marginal job functions to accommodate an employee’s disability, the guidance allows employers to substitute marginal functions from other jobs that the employee may be able to perform.

Reassignment.
An employee is entitled to reassignment, even if he or she can no longer perform the essential functions of his or her position, if he or she is qualified to fill a vacant position. Importantly, the employee does not have to be the most qualified individual to be entitled to the vacant position—the employee need only be "qualified" to perform the job. However, the employee is not entitled to any preference regarding a reassignment that would be considered a promotion.

Additionally, the guidance places the burden on the employer to notify the employee about the existence of vacant positions for which he or she is qualified, since the employer is in the best position to know which jobs are vacant.

Leaves of absence.
An employer may not enforce a "no-fault" attendance/leave policy against an employee on disability leave unless the employee’s continued absence would create an undue hardship. Moreover, an employee may be entitled to leave even when he or she cannot provide a fixed date of return. Before an employer may deny an employee’s leave request, it must demonstrate that its inability to ascertain a fixed or approximate return date creates an undue hardship.

Telecommuting.
An employee may be entitled to work at home as an accommodation of his or her disability. Whether or not telecommuting is reasonable will depend on the essential functions of the position in question. Relevant considerations include the employer’s ability to adequately supervise the employee and the employee’s need to work with certain equipment or tools that cannot be replicated at home. Telemarketing and proofreading jobs were explicitly mentioned as positions that may be appropriate for telecommuting.

Disability-related misconduct.
An employer is entitled to enforce workplace conduct rules, even against an employee who engages in disability-related misconduct, so long as it enforces its conduct rules consistently regarding disabled and non-disabled employees. Nevertheless, the employer may be obligated to prospectively accommodate the employee by assisting him or her in meeting such conduct standards in the future.

Medical side effects.
An employee with a disability is also entitled to accommodation for the medical side-effects of his or her disability, even if the side-effects are not by themselves disabling.

EEOC guidance receives some deference in federal courts.
The federal courts can be expected to afford significant weight to the EEOC guidance. EEOC guidances generally do not command the deference that is afforded to formal regulations. Nevertheless, guidances receive significant judicial consideration and also alert employers to the likelihood that the EEOC will challenge specific employment policies and decisions.

Cite: EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act. March 1, 1999.

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