Employers’ Obligations for Accommodation
Under the Americans with Disabilities Act, and an accompanying web of other laws and protections at both the state and federal level, nearly all employers have some obligation to “accommodate” or modify otherwise usual aspects of performing in a role, to remove barriers to employment for individuals with disabilities. The scope of an employer’s obligation to accommodate is often not fully understood. In addition, the process of understanding where and when this is required, and how to go about meeting this obligation in the best way possible for both the business and the employee, can be tricky and fraught with opportunities for missteps.
To help make this process easier, we’ve put together an easy guide below on what your obligations are, and how to meet them, for the benefit of your staff and your business.
When do I need to consider accommodating?
Employers need to engage in the process of considering a “reasonable accommodation” when either qualified job applicants or employees with disabilities, request or otherwise make clear that a disability condition exists and accommodation is needed, and may be effective, for them to perform in a position. Explicit requests or notification of accommodation are not necessary for an employer to be deemed “aware” of an employee’s disability condition or potential need for accommodation. In fact, the overseeing agencies make it clear that where an employer (which includes any members of management) knows the individual has a disability and knows or has reason to know that a barrier to good performance may exist because of that disability, a need to consider accommodation exists. This could involve an individual simply mentioning a struggle with mental illness that is making it hard for them to come to work, or an employee who mentions a doctor’s appointment for an ongoing gastro issue when asked about taking frequent bathroom breaks. Employers and their Managers should be aware that these situations warrant additional care and consideration of accommodation need, especially before any negative action is considered against the employee.
What is a Disability?
Once an employer is made aware that there could be a potential disability-qualifying condition at play affecting a person’s performance, they should then begin the process of discussing the situation with the individual, to determine all the facts and if a reasonable accommodation would be possible, necessary, or effective. The first question in this process is to determine whether the employee has a condition that is considered a disability to know whether an accommodation is required. This process should be handled formally and documented and verified by the individual’s treating physician before additional steps in the process are taken.
As a point of reference, under the ADA, a disability qualifying condition is defined as a physical or mental condition that substantially limits a major life activity. Major life activities include things walking, breathing, talking, hearing, caring for oneself, etc., but also includes the operation of major bodily functions. Major bodily functions are things like immune system functionality, digestive functions, neurological problems, etc. Typically, the condition needs to be chronic in nature, but employers should be aware that definition of “chronic” is lower than one might think. As a general rule it includes conditions that result in incapacitation for 3 or more days at a time within a year, and involves “ongoing treatment”, which can be as little as two appointments per year.
Employers should be aware of what kinds of conditions could be considered under the scope of “disability” to understand when they should pause and engage in this process before acting against an employee for performance, and potentially risk violating their obligations and the employee’s rights. Once an employer is made aware that a disability may exist, they should then make it a practice to require and lean on actual physician information to verify the condition and confirm the obligation to consider accommodation.
What does a Reasonable Accommodation look like?
Once a disability condition is verified with doctor’s information, the “interactive process” of determining whether a reasonable accommodation can be made, should begin. In the process of gathering documentation of the condition from the individual’s doctor, employers should also request that the doctor be specific in indicating what, if any, restrictions, or accommodations may be required for the employee in performing their job. This may require providing the Physician with a job description as well. The documentation of any of these needs can then begin the process of exploring reasonable accommodation- a process that must be “interactive” which includes discussions with both the employee and their Manager.
Employers should note that under the law, an accommodation is deemed “reasonable”, unless it would cause significant difficulty or expense on behalf of the employer. This means that the bar to deny any accommodation is high in most circumstances. Simple inconveniences to the employer or others certainly are not reason enough to deny a request. When considering what is reasonable, employers should note that they are not required to make an accommodation that would excuse the employee from performing essential functions of the position. This means that a reduction is performance standards should not be considered or part of an accommodation solution. Accommodations are simply meant to provide alternative or supplemental arrangements to allow an employee to perform in the job as needed, not reduce the requirement for them to perform in the job itself. Note, that in situations where intermittent leave or a reduced schedule may be required as a temporary accommodation, some performance metrics from a work volume standpoint would naturally need to be modified as a result, but other performance elements like quality, accuracy, customer satisfaction, etc. would all remain. Some common examples of accommodations include things like modified work schedules, use of technology assistance, alternative lighting, a remote work arrangement, increased bathroom breaks, chair cushions, etc.
Finally, if/when an accommodation is granted, employers should be purposeful in documenting and communicating the details of the arrangement, including clearly defining the period the arrangement is effective for, and if/when the need will be reviewed again (per the Doctor’s information about the duration of the condition, next appointment, etc.) if the condition is temporary. This letter should also clearly communicate to the employee their obligation to still perform effectively in their role, their need to report any changes in circumstance, etc. All of this will help to clearly set expectations, while also providing documentable proof of your compliance with the accommodation process and all the related laws.
The bottom line, like most things employment-law related, is that employers should proceed with caution and care when it comes to responding to employee situations that could involve any kind of medical condition. Understanding obligations and establishing processes and documentation will be key in these situations to manage both the risks involved, as well as the potential disruptions on your business. If you are facing some of these situations in your business, we encourage you to do more research, or reach out for guidance, to put best practice solutions in place and avoid any unforeseen consequences in the future.
