What is a Reasonable Accommodation Under the ADA?
What is a Reasonable Accommodation Under the ADA? Under the Americans With Disabilities Act, as amended (“ADA”), employers have a duty to provide reasonable accommodations to qualified individuals with a disability. It is important for employers to understand their duty to meet and confer and what makes an accommodation “reasonable.”
Duty to Meet and Confer
Employees are required to be able to perform all of their essential job functions, with or without a reasonable accommodation. If an employer becomes aware that an employee may have some kind of disability, they should speak with the employee to see if they need an accommodation. Employers should not ask an employee what medical conditions they have – they should instead ask, “Do you need any accommodations to perform your job duties?” Employers are not allowed to ask an employee to disclose what medical conditions they have, but they can and should ask whether any accommodations may be needed.
The primary purpose behind the ADA is to require that employees and employers meet and confer to discuss what accommodations the employee may need. Employers must promptly meet and confer with an employee as soon as they learn of the need for any accommodation. Both parties should be creative in identifying all of the accommodations that would allow the employee to perform their job duties. A great resource for employers to use is the Job Accommodation Network.
If an employer is not willing to give a particular accommodation, it should first consult an experienced employment attorney. The ADA is a complex and ever evolving area of the law. After consulting with an attorney, if the employer still intends to deny a requested accommodation, it should tell the employee, in writing, why it is not willing to grant the accommodation. The employer should explain why the accommodation is not necessary or is otherwise an undue burden. Denying an accommodation can result in liability to the employer. Be careful.
Many employees request to telecommute as a reasonable accommodation. Employers have a right to ask the employee why telecommuting is a reasonable and necessary accommodation. Employers, however, should be careful not to ask the employee what medical conditions they have, but instead focus on asking why telecommuting is a reasonable accommodation.
Many employees have anxiety and depression. If a medical provider provides documentation that telecommuting would help the employee with their anxiety or depression, an employer should be careful in deciding whether to allow for telecommuting.
If an employer does not want to allow for telecommuting, it needs to be able to demonstrate that presence in the office is an essential job function. Alternatively, employers must be able to demonstrate that allowing for telecommuting would be an “undue burden.” To prove an accommodation would be an undue burden, an employer must generally show that it would be a financial or other hardship. Individuals who primarily spend their time emailing and making phone calls can sometimes do their job from home. This may make it difficult for an employer to show that telecommuting is an undue burden. Employers can require that telecommuting employees maintain certain levels of productivity or are available during a set schedule. Each case is different and requires a fact specific analysis, but telecommuting may be a reasonable accommodation if supported by a medical provider and not an undue burden. Employers should also be careful to maintain the same telecommuting standards for all employees to avoid claims of discrimination. Telecommuting presents a host of issues for employers. Decisions as to telecommuting should be given careful thought and deliberation.
Modified Work Schedule
Some employees ask for a modified work schedule. Some ask to be able to arrive late or leave early to attend doctor’s appointments. Others ask to work a reduced schedule. Leaving early or arriving late to attend a medical appointment is almost certainly going to be considered a reasonable accommodation. If the employer is subject to FMLA, then both FMLA and ADA must be considered when modifying a work schedule.
If an employee requests to work less hours, that may be a reasonable accommodation depending on the employee’s job functions and the employer’s ability to provide such an accommodation. Some courts have held that being able to work overtime is an essential job function. Others have been less receptive to the idea that the employee must work a certain schedule.
The law is unclear and always evolving. Get advice early on. Carefully consider all options. Be creative and thoughtful. Document all decisions. Ensure all policies and agreements with employees are carefully drafted. A bit of upfront care can avoid an expensive lawsuit.
About the Author: Jeff Silence is an employment law attorney and partner at the Phoenix law firm of Jaburg Wilk. Jeff has helped many employers with both ADA and FMLA compliance. He also drafts employee handbooks and helps employers comply with the Arizona paid sick time law.