United States: EEOC Clarifies Reasonable Accommodation Under The ADA

Recently, the Equal Employment Opportunity Commission ("EEOC") issued its latest Enforcement Guidance addressing two areas of the Americans With Disabilities Act ("ADA") which have consistently caused concern and confusion among employers: reasonable accommodations and undue hardship. The EEOC reaffirmed its prior positions with regard to these topics, and also provided clarification and examples to assist employers when they are faced with a disabled employee who requires a reasonable accommodation.

The ADA requires employers to provide a reasonable accommodation to qualified individuals with disabilities who are em-ployees or applicants, unless doing so would cause an undue hardship. The EEOC noted some reasonable accommo-dations commonly provided by employers: (1) making existing facilities accessible; (2) job restructuring; (3) part-time or modified work schedules; (4) acquiring or modifying equipment; (5) changing tests, training materials, or policies; (6) providing quali-fied readers or interpreters; and (7) reas-signment to a vacant position.

The ADA does not require an employer to eliminate a fundamental duty of a position, nor is it required to lower production standards. The only statutory limitation on an employer’s obligation to provide a reasonable accommodation is that it is not required to provide one if it would cause an undue hardship on the employer. Undue hardship, as discussed later, must be assessed on a case-by-case basis.

The EEOC takes the position that when an employee requires a reasonable accom-modation, he or she must merely let the employer know that an adjustment or change at work for a reason related to a medical condition is needed. The em-ployee may use "plain English" and need not mention the ADA or the phrase "rea-sonable accommodation." Employers therefore have an obligation to listen carefully to the requests and needs of their employees. Moreover, simply because an employee has requested a reasonable accommodation does not mean that the employer is required to provide it. The request is the first step in an informal, interactive process between the employee and employer. The employer may choose among reasonable accommodations so long as the chosen accommodation is effective.

When an employee requests a reasonable accommodation, if an employee’s disability and/or the need for accommodation is not obvious, the employer may ask the employee for reasonable docu-mentation about his or her disability and functional limitations. However, an employer cannot ask for such documentation if: (1) both the disability and need for reasonable accommodation are obvious; or (2) the employee has already provided the employer with sufficient information to substantiate that he or she has an ADA disability and needs the requested reasonable accommodation.

An employer is not required to excuse past misconduct, even if it is the result of the employee’s disability, and it may discipline the employee for such misconduct. Once the employee’s disability and need for reasonable accommodation becomes known, however, the employer must provide reasonable accommodation to allow the employee to meet a conduct standard in the future, barring undue hardship, and except where the punish-ment for the violation is termination.

Consistent with the EEOC’s prior guidance, generally an employer is not required to ask whether a reasonable accommodation is needed, except where: (1) the employer knows that the employee has a disability; (2) the employer knows, or has reason to know, that the employee is experiencing workplace problems because of the disability; and (3) the employer knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation. In these instances, the employer should initiate the reasonable accommodation interactive process.

Permitting the use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation when necessitated by an employee’s disability. An employer does not have to provide paid leave beyond that which is provided to similarly situated employees. Furthermore, an employee who is granted a leave of absence as a reasonable accommodation is entitled to return to his or her same position unless the employer demonstrates that holding open the position would impose an undue hardship. If undue hardship results, the employer must consider whether it has a vacant, equivalent position to which the employee can be reassigned for the remainder of his or her leave and then, at the conclusion of leave, can return to this new position.

The ADA specifically lists "reassignment to a vacant position" as a form of reasonable accommodation. Before considering reassignment, an employer should first consider those reasonable accommodations that would enable an employee to remain in his or her current position. The EEOC Guidance specifically states that reassignment is the reasonable accommodation of last resort and is required only after it is determined that there are no reasonable accommodations that will enable the employee to remain in his or her position or all other reasonable accommodations would impose an undue hardship.

Undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense. A determination of undue hardship should be based on several factors, including: (1) the nature and cost of the accommodation needed; (2) overall financial resources of the facility making the reasonable accommodation, as well as the larger entity if the facility making the reasonable accom-modation is part of larger entity; (3) type of operation of the employer; and (4) impact of the accommodation on the operation of the facility. A cost-benefit analysis does not determine whether a reasonable accommodation will cause undue hardship and should not be utilized in making such determination. Rather, undue hardship is determined based on the net cost to the employer.

An employer cannot claim undue hardship based on employees’ or customers’ fears or prejudices towards the employee’s disability or the potential negative impact on the morale of other employees. Undue hardship can be claimed, however, if the provision of a reasonable accommodation would cause significant disruption to the employer’s operations. Undue hardship must be consid-ered on a case-by-case basis.

A question often asked is whether an employer can deny request for leave when an employee cannot provide a fixed date of return. In its Guidance, the EEOC re-sponds that in certain circumstances, undue hardship can derive from the disruption to the operations of the employer that occurs because the employer can neither plan for the employee’s return, nor permanently fill the position. An employer has the right to request periodic updates on the employee’s condition and his or her possible date of return. After receiving these updates, an employer may reevaluate whether continued leave constitutes an undue hardship. If an employee provides an approximate date of return, an employer may not claim undue hardship solely because the employee cannot provide an exact date.

Despite the succession of EEOC Guidances on the ADA, the fact remains that most ADA issues must be resolved on a case-by-case basis. The best approach always is an interactive dialogue with the employee and reason-able consideration of the options available. Greenberg Traurig will continue to help its client employers develop sound policies with regard to the ADA and remains ready to advise employers on how to respond to specific instances that require assessment of ADA situations and compliance with the ADA.