From: Subject: ENFORCEMENT GUIDANCE: REASONABLE ACCOMMODATION AND UNDUE HARDSHIP UNDER THE AMERICANS WITH DISABILITIES ACT Date: Mon, 18 Aug 2008 21:15:00 -0500 MIME-Version: 1.0 Content-Type: multipart/related; type="text/html"; boundary="----=_NextPart_000_0000_01C90177.791EAFC0" X-MimeOLE: Produced By Microsoft MimeOLE V6.00.2900.3350 This is a multi-part message in MIME format. ------=_NextPart_000_0000_01C90177.791EAFC0 Content-Type: text/html; charset="Windows-1252" Content-Transfer-Encoding: quoted-printable Content-Location: http://www.eeoc.gov/policy/docs/accommodation.html ENFORCEMENT GUIDANCE: REASONABLE = ACCOMMODATION AND UNDUE HARDSHIP UNDER THE AMERICANS WITH DISABILITIES = ACT =0A= The U.S. Equal Employment Opportunity = Commission=20
  NOTICE Number
915.002
EEOC
  October 17, 2002
  1. SUBJECT: EEOC Enforcement Guidance on Reasonable = Accommodation and=20 Undue Hardship Under the Americans with Disabilities Act=20
  2. PURPOSE: This enforcement guidance supersedes the = enforcement=20 guidance issued by the Commission on 03/01/99. Most of the original = guidance=20 remains the same, but limited changes have been made as a result of: = (1) the=20 Supreme Court's decision in US Airways, Inc. v. Barnett, 535 U.S., 122 = S. Ct.=20 1516 (2002), and (2) the Commission's issuance of new regulations = under=20 section 501 of the Rehabilitation Act. The major changes in response = to the=20 Barnett decision are found on pages 4-5, 44-45, and 61-62. In = addition, minor=20 changes were made to certain footnotes and the Instructions for = Investigators=20 as a result of the Barnett decision and the new section 501 = regulations.=20
  3. EFFECTIVE DATE: Upon receipt.=20
  4. EXPIRATION DATE: As an exception to EEOC Order 205.001, = Appendix B,=20 Attachment 4, . a(5), this Notice will remain in effect until = rescinded or=20 superseded.=20
  5. ORIGINATOR: ADA Division, Office of Legal Counsel.=20
  6. INSTRUCTIONS: File after Section 902 of Volume II of the = Compliance=20 Manual.


Enforcement Guidance:
Reasonable Accommodation and = Undue=20 Hardship Under the Americans with Disabilities Act

Table of Contents

INTRODU= CTION

GENER= AL=20 PRINCIPLES

RE= QUESTING=20 REASONABLE ACCOMMODATION

RE= ASONABLE=20 ACCOMMODATION AND JOB APPLICANTS

RE= ASONABLE=20 ACCOMMODATION RELATED TO THE BENEFITS AND PRIVILEGES OF = EMPLOYMENT

TYPES = OF=20 REASONABLE ACCOMMODATIONS RELATED TO JOB PERFORMANCE

JOB=20 RESTRUCTURING

LEAVE=20

MODI= FIED OR=20 PART-TIME SCHEDULE

MOD= IFIED=20 WORKPLACE POLICIES

= REASSIGNMENT

OTHER=20 REASONABLE ACCOMMODATION ISSUES

UNDUE=20 HARDSHIP ISSUES

BURDE= NS=20 OF PROOF

= INSTRUCTIONS=20 FOR INVESTIGATORS

APPE= NDIX:=20 RESOURCES FOR LOCATING REASONABLE ACCOMMODATIONS

INDEX



Enforcement Guidance:
Reasonable Accommodation and Undue Hardship = Under=20 the Americans with Disabilities Act

INTRODUCTION

This Enforcement Guidance clarifies the rights and responsibilities = of=20 employers and individuals with disabilities regarding reasonable = accommodation=20 and undue hardship. Title I of the ADA requires an employer to provide=20 reasonable accommodation to qualified individuals with disabilities who = are=20 employees or applicants for employment, except when such accommodation = would=20 cause an undue hardship. This Guidance sets forth an employer's legal=20 obligations regarding reasonable accommodation; however, employers may = provide=20 more than the law requires.

This Guidance examines what "reasonable accommodation" means and who = is=20 entitled to receive it. The Guidance addresses what constitutes a = request for=20 reasonable accommodation, the form and substance of the request, and an=20 employer's ability to ask questions and seek documentation after a = request has=20 been made.

The Guidance discusses reasonable accommodations applicable to the = hiring=20 process and to the benefits and privileges of employment. The Guidance = also=20 covers different types of reasonable accommodations related to job = performance,=20 including job restructuring, leave, modified or part-time schedules, = modified=20 workplace policies, and reassignment. Questions concerning the = relationship=20 between the ADA and the Family and Medical Leave Act (FMLA) are examined = as they=20 affect leave and modified schedules. Reassignment issues addressed = include who=20 is entitled to reassignment and the extent to which an employer must = search for=20 a vacant position. The Guidance also examines issues concerning the = interplay=20 between reasonable accommodations and conduct rules.

The final = section of=20 this Guidance discusses undue hardship, including when requests for = schedule=20 modifications and leave may be denied.=20

GENERAL PRINCIPLES

Reasonable Accommodation

Title I of the Americans with Disabilities Act of 1990 (the "ADA")(1)= =20 requires an employer(2)= =20 to provide reasonable accommodation to qualified individuals with = disabilities=20 who are employees or applicants for employment, unless to do so would = cause=20 undue hardship. "In general, an accommodation is any change in the work=20 environment or in the way things are customarily done that enables an = individual=20 with a disability to enjoy equal employment opportunities."(3)= There=20 are three categories of "reasonable accommodations":

"(i) modifications or adjustments to a job application process that = enable=20 a qualified applicant with a disability to be considered for the = position such=20 qualified applicant desires; or

(ii) modifications or adjustments to the work environment, or to = the manner=20 or circumstances under which the position held or desired is = customarily=20 performed, that enable a qualified individual with a disability to = perform the=20 essential functions of that position; or

(iii) modifications or adjustments that enable a covered entity's = employee=20 with a disability to enjoy equal benefits and privileges of employment = as are=20 enjoyed by its other similarly situated employees without = disabilities."(4)=

The duty to provide reasonable accommodation is a fundamental = statutory=20 requirement because of the nature of discrimination faced by individuals = with=20 disabilities. Although many individuals with disabilities can apply for = and=20 perform jobs without any reasonable accommodations, there are workplace = barriers=20 that keep others from performing jobs which they could do with some form = of=20 accommodation. These barriers may be physical obstacles (such as = inaccessible=20 facilities or equipment), or they may be procedures or rules (such as = rules=20 concerning when work is performed, when breaks are taken, or how = essential or=20 marginal functions are performed). Reasonable accommodation removes = workplace=20 barriers for individuals with disabilities.

Reasonable accommodation is available to qualified applicants and = employees=20 with disabilities.(5)= =20 Reasonable accommodations must be provided to qualified employees = regardless of=20 whether they work part- time or full-time, or are considered = "probationary."=20 Generally, the individual with a disability must inform the employer = that an=20 accommodation is needed.(6)=

There are a number of possible reasonable accommodations that an = employer may=20 have to provide in connection with modifications to the work environment = or=20 adjustments in how and when a job is performed. These include:

  • making existing facilities accessible;=20
  • job restructuring;=20
  • part-time or modified work schedules;=20
  • acquiring or modifying equipment;=20
  • changing tests, training materials, or policies;=20
  • providing qualified readers or interpreters; and=20
  • reassignment to a vacant position.(7)= =20

A modification or adjustment is "reasonable" if it "seems reasonable = on its=20 face, i.e., ordinarily or in the run of cases;"(8)= =20 this means it is "reasonable" if it appears to be "feasible" or = "plausible."(9)= An=20 accommodation also must be effective in meeting the needs of the = individual.(1= 0)=20 In the context of job performance, this means that a reasonable = accommodation=20 enables the individual to perform the essential functions of the = position.=20 Similarly, a reasonable accommodation enables an applicant with a = disability to=20 have an equal opportunity to participate in the application process and = to be=20 considered for a job. Finally, a reasonable accommodation allows an = employee=20 with a disability an equal opportunity to enjoy the benefits and = privileges of=20 employment that employees without disabilities enjoy.

Example A: An employee with a hearing = disability must be=20 able to contact the public by telephone. The employee proposes that he = use a=20 TTY(1= 1)=20 to call a relay service operator who can then place the telephone call = and relay=20 the conversation between the parties. This is "reasonable" because a TTY = is a=20 common device used to facilitate communication between hearing and=20 hearing-impaired individuals. Moreover, it would be effective in = enabling the=20 employee to perform his job.

Example B: A cashier easily becomes fatigued = because of=20 lupus and, as a result, has difficulty making it through her shift. The = employee=20 requests a stool because sitting greatly reduces the fatigue. This = accommodation=20 is reasonable because it is a common-sense solution to remove a = workplace=20 barrier being required to stand when the job can be effectively = performed=20 sitting down. This "reasonable" accommodation is effective because it = addresses=20 the employee's fatigue and enables her to perform her job.

Example C: A cleaning company rotates its staff = to=20 different floors on a monthly basis. One crew member has a psychiatric=20 disability. While his mental illness does not affect his ability to = perform the=20 various cleaning functions, it does make it difficult to adjust to = alterations=20 in his daily routine. The employee has had significant difficulty = adjusting to=20 the monthly changes in floor assignments. He asks for a reasonable = accommodation=20 and proposes three options: staying on one floor permanently, staying on = one=20 floor for two months and then rotating, or allowing a transition period = to=20 adjust to a change in floor assignments. These accommodations are = reasonable=20 because they appear to be feasible solutions to this employee's problems = dealing=20 with changes to his routine. They also appear to be effective because = they would=20 enable him to perform his cleaning duties.

There are several modifications or adjustments that are not = considered forms=20 of reasonable accommodation.(1= 2)=20 An employer does not have to eliminate an essential function, i.e., a=20 fundamental duty of the position. This is because a person with a = disability who=20 is unable to perform the essential functions, with or without reasonable = accommodation,(1= 3)=20 is not a "qualified" individual with a disability within the meaning of = the ADA.=20 Nor is an employer required to lower production standards -- whether = qualitative=20 or quantitative(1= 4)=20 -- that are applied uniformly to employees with and without = disabilities.=20 However, an employer may have to provide reasonable accommodation to = enable an=20 employee with a disability to meet the production standard. While an = employer is=20 not required to eliminate an essential function or lower a production = standard,=20 it may do so if it wishes.

An employer does not have to provide as reasonable accommodations = personal=20 use items needed in accomplishing daily activities both on and off the = job.=20 Thus, an employer is not required to provide an employee with a = prosthetic limb,=20 a wheelchair, eyeglasses, hearing aids, or similar devices if they are = also=20 needed off the job. Furthermore, an employer is not required to provide = personal=20 use amenities, such as a hot pot or refrigerator, if those items are not = provided to employees without disabilities. However, items that might = otherwise=20 be considered personal may be required as reasonable accommodations = where they=20 are specifically designed or required to meet job-related rather than = personal=20 needs.(1= 5)

Undue Hardship

The only statutory limitation on an employer's obligation to provide=20 "reasonable accommodation" is that no such change or modification is = required if=20 it would cause "undue hardship" to the employer.(1= 6)=20 "Undue hardship" means significant difficulty or expense and focuses on = the=20 resources and circumstances of the particular employer in relationship = to the=20 cost or difficulty of providing a specific accommodation. Undue hardship = refers=20 not only to financial difficulty, but to reasonable accommodations that = are=20 unduly extensive, substantial, or disruptive, or those that would = fundamentally=20 alter the nature or operation of the business.(1= 7)=20 An employer must assess on a case-by-case basis whether a particular = reasonable=20 accommodation would cause undue hardship. The ADA's "undue hardship" = standard is=20 different from that applied by courts under Title VII of the Civil = Rights Act of=20 1964 for religious accommodation.(1= 8)

REQUESTING REASONABLE = ACCOMMODATION

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

    When an individual decides to request accommodation, the individual = or=20 his/her representative must let the employer know that s/he needs an=20 adjustment or change at work for a reason related to a medical = condition. To=20 request accommodation, an individual may use "plain English" and need = not=20 mention the ADA or use the phrase "reasonable accommodation."(1= 9)

    Example A: An employee tells her supervisor, = "I'm=20 having trouble getting to work at my scheduled starting time because = of=20 medical treatments I'm undergoing." This is a request for a reasonable = accommodation.

    Example B: An employee tells his supervisor, = "I need=20 six weeks off to get treatment for a back problem." This is a request = for a=20 reasonable accommodation.

    Example C: A new employee, who uses a = wheelchair,=20 informs the employer that her wheelchair cannot fit under the desk in = her=20 office. This is a request for reasonable accommodation.

    Example D: An employee tells his supervisor = that he=20 would like a new chair because his present one is uncomfortable. = Although this=20 is a request for a change at work, his statement is insufficient to = put the=20 employer on notice that he is requesting reasonable accommodation. He = does not=20 link his need for the new chair with a medical condition.

    While an individual with a disability may request a change due to a = medical=20 condition, this request does not necessarily mean that the employer is = required to provide the change. A request for reasonable accommodation = is the=20 first step in an informal, interactive process between the individual = and the=20 employer. In some instances, before addressing the merits of the = accommodation=20 request, the employer needs to determine if the individual's medical = condition=20 meets the ADA definition of "disability,"(2= 0)=20 a prerequisite for the individual to be entitled to a reasonable=20 accommodation.

  2. May someone other than the individual with a disability request a=20 reasonable accommodation on behalf of the individual?=20

    Yes, a family member, friend, health professional, or other = representative=20 may request a reasonable accommodation on behalf of an individual with = a=20 disability.(2= 1)=20 Of course, the individual with a disability may refuse to accept an=20 accommodation that is not needed.

    Example A: An employee's spouse phones the = employee's=20 supervisor on Monday morning to inform her that the employee had a = medical=20 emergency due to multiple sclerosis, needed to be hospitalized, and = thus=20 requires time off. This discussion constitutes a request for = reasonable=20 accommodation.

    Example B: An employee has been out of work = for six=20 months with a workers' compensation injury. The employee's doctor = sends the=20 employer a letter, stating that the employee is released to return to = work,=20 but with certain work restrictions. (Alternatively, the letter may = state that=20 the employee is released to return to a light duty position.) The = letter=20 constitutes a request for reasonable accommodation.

  3. Do requests for reasonable accommodation need to be in writing?=20

    No. Requests for reasonable accommodation do not need to be in = writing.=20 Individuals may request accommodations in conversation or may use any = other=20 mode of communication.(2= 2)An=20 employer may choose to write a memorandum or letter confirming the=20 individual's request. Alternatively, an employer may ask the = individual to=20 fill out a form or submit the request in written form, but the = employer cannot=20 ignore the initial request. An employer also may request reasonable=20 documentation that the individual has an ADA disability and needs a = reasonable=20 accommodation. (See Question 6).

  4. When should an individual with a disability request a reasonable=20 accommodation?=20

    An individual with a disability may request a reasonable = accommodation at=20 any time during the application process or during the period of = employment.=20 The ADA does not preclude an employee with a disability from = requesting a=20 reasonable accommodation because s/he did not ask for one when = applying for a=20 job or after receiving a job offer. Rather, an individual with a = disability=20 should request a reasonable accommodation when s/he knows that there = is a=20 workplace barrier that is preventing him/her, due to a disability, = from=20 effectively competing for a position, performing a job, or gaining = equal=20 access to a benefit of employment.(2= 3)=20 As a practical matter, it may be in an employee's interest to request = a=20 reasonable accommodation before performance suffers or conduct = problems=20 occur.

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

    The employer and the individual with a disability should engage in = an=20 informal process to clarify what the individual needs and identify the = appropriate reasonable accommodation.(2= 4)=20 The employer may ask the individual relevant questions that will = enable it to=20 make an informed decision about the request. This includes asking what = type of=20 reasonable accommodation is needed.(2= 5)

    The exact nature of the dialogue will vary. In many instances, both = the=20 disability and the type of accommodation required will be obvious, and = thus=20 there may be little or no need to engage in any discussion. In other=20 situations, the employer may need to ask questions concerning the = nature of=20 the disability and the individual's functional limitations in order to = identify an effective accommodation. While the individual with a = disability=20 does not have to be able to specify the precise accommodation, s/he = does need=20 to describe the problems posed by the workplace barrier. Additionally, = suggestions from the individual with a disability may assist the = employer in=20 determining the type of reasonable accommodation to provide. Where the = individual or the employer are not familiar with possible = accommodations,=20 there are extensive public and private resources to help the employer = identify=20 reasonable accommodations once the specific limitations and workplace = barriers=20 have been ascertained.(2= 6)

  6. May an employer ask an individual for documentation when the = individual=20 requests reasonable accommodation?=20

    Yes. When the disability and/or the need for accommodation is not = obvious,=20 the employer may ask the individual for reasonable documentation about = his/her=20 disability and functional limitations. (2= 7)=20 The employer is entitled to know that the individual has a covered = disability=20 for which s/he needs a reasonable accommodation.

    Reasonable documentation means that the employer may require only = the=20 documentation that is needed to establish that a person has an ADA = disability,=20 and that the disability necessitates a reasonable accommodation. Thus, = an=20 employer, in response to a request for reasonable accommodation, = cannot ask=20 for documentation that is unrelated to determining the existence of a=20 disability and the necessity for an accommodation. This means that in = most=20 situations an employer cannot request a person's complete medical = records=20 because they are likely to contain information unrelated to the = disability at=20 issue and the need for accommodation. If an individual has more than = one=20 disability, an employer can request information pertaining only to the = disability that requires a reasonable accommodation.

    An employer may require that the documentation about the disability = and the=20 functional limitations come from an appropriate health care or = rehabilitation=20 professional. The appropriate professional in any particular situation = will=20 depend on the disability and the type of functional limitation it = imposes.=20 Appropriate professionals include, but are not limited to, doctors = (including=20 psychiatrists), psychologists, nurses, physical therapists, = occupational=20 therapists, speech therapists, vocational rehabilitation specialists, = and=20 licensed mental health professionals.

    In requesting documentation, employers should specify what types of = information they are seeking regarding the disability, its functional=20 limitations, and the need for reasonable accommodation. The individual = can be=20 asked to sign a limited release allowing the employer to submit a list = of=20 specific questions to the health care or vocational professional.(2= 8)

    As an alternative to requesting documentation, an employer may = simply=20 discuss with the person the nature of his/her disability and = functional=20 limitations. It would be useful for the employer to make clear to the=20 individual why it is requesting information, i.e., to verify the = existence of=20 an ADA disability and the need for a reasonable accommodation.

    Example A: An employee says to an employer, = "I'm having=20 trouble reaching tools because of my shoulder injury." The employer = may ask=20 the employee for documentation describing the impairment; the nature,=20 severity, and duration of the impairment; the activity or activities = that the=20 impairment limits; and the extent to which the impairment limits the=20 employee's ability to perform the activity or activities (i.e., the = employer=20 is seeking information as to whether the employee has an ADA = disability).

    Example B: A marketing employee has a severe = learning=20 disability. He attends numerous meetings to plan marketing strategies. = In=20 order to remember what is discussed at these meetings he must take = detailed=20 notes but, due to his disability, he has great difficulty writing. The = employee tells his supervisor about his disability and requests a = laptop=20 computer to use in the meetings. Since neither the disability nor the = need for=20 accommodation are obvious, the supervisor may ask the employee for = reasonable=20 documentation about his impairment; the nature, severity, and duration = of the=20 impairment; the activity or activities that the impairment limits; and = the=20 extent to which the impairment limits the employee's ability to = perform the=20 activity or activities. The employer also may ask why the disability=20 necessitates use of a laptop computer (or any other type of reasonable = accommodation, such as a tape recorder) to help the employee retain = the=20 information from the meetings.(2= 9)

    Example C: An employee's spouse phones the = employee's=20 supervisor on Monday morning to inform her that the employee had a = medical=20 emergency due to multiple sclerosis, needed to be hospitalized, and = thus=20 requires time off. The supervisor can ask the spouse to send in = documentation=20 from the employee's treating physician that confirms that the = hospitalization=20 was related to the multiple sclerosis and provides information on how = long an=20 absence may be required from work.(3= 0)

    If an individual's disability or need for reasonable accommodation = is not=20 obvious, and s/he refuses to provide the reasonable documentation = requested by=20 the employer, then s/he is not entitled to reasonable accommodation.(3= 1)=20 On the other hand, failure by the employer to initiate or participate = in an=20 informal dialogue with the individual after receiving a request for = reasonable=20 accommodation could result in liability for failure to provide a = reasonable=20 accommodation.(3= 2)

  7. May an employer require an individual to go to a health care = professional=20 of the employer's (rather than the employee's) choice for purposes of=20 documenting need for accommodation and disability?=20

    The ADA does not prevent an employer from requiring an individual = to go to=20 an appropriate health professional of the employer's choice if the = individual=20 provides insufficient information from his/her treating physician (or = other=20 health care professional) to substantiate that s/he has an ADA = disability and=20 needs a reasonable accommodation. However, if an individual provides=20 insufficient documentation in response to the employer's initial = request, the=20 employer should explain why the documentation is insufficient and = allow the=20 individual an opportunity to provide the missing information in a = timely=20 manner. Documentation is insufficient if it does not specify the = existence of=20 an ADA disability and explain the need for reasonable accommodation.(3= 3)

    Any medical examination conducted by the employer's health = professional=20 must be job-related and consistent with business necessity. This means = that=20 the examination must be limited to determining the existence of an ADA = disability and the functional limitations that require reasonable=20 accommodation.(3= 4)If=20 an employer requires an employee to go to a health professional of the = employer's choice, the employer must pay all costs associated with the = visit(s).

  8. Are there situations in which an employer cannot ask for = documentation in=20 response to a request for reasonable accommodation?=20

    Yes. An employer cannot ask for documentation when: (1) both the = disability=20 and the need for reasonable accommodation are obvious, or (2) the = individual=20 has already provided the employer with sufficient information to = substantiate=20 that s/he has an ADA disability and needs the reasonable accommodation = requested.

    Example A: An employee brings a note from her = treating=20 physician explaining that she has diabetes and that, as a result, she = must=20 test her blood sugar several times a day to ensure that her insulin = level is=20 safe in order to avoid a hyperglycemic reaction. The note explains = that a=20 hyperglycemic reaction can include extreme thirst, heavy breathing,=20 drowsiness, and flushed skin, and eventually would result in = unconsciousness.=20 Depending on the results of the blood test, the employee might have to = take=20 insulin. The note requests that the employee be allowed three or four=20 10-minute breaks each day to test her blood, and if necessary, to take = insulin. The doctor's note constitutes sufficient documentation that = the=20 person has an ADA disability because it describes a substantially = limiting=20 impairment and the reasonable accommodation needed as a result. The = employer=20 cannot ask for additional documentation.

    Example B: One year ago, an employer learned = that an=20 employee had bipolar disorder after he requested a reasonable = accommodation.=20 The documentation provided at that time from the employee's = psychiatrist=20 indicated that this was a permanent condition which would always = involve=20 periods in which the disability would remit and then intensify. The=20 psychiatrist's letter explained that during periods when the condition = flared=20 up, the person's manic moods or depressive episodes could be severe = enough to=20 create serious problems for the individual in caring for himself or = working,=20 and that medication controlled the frequency and severity of these=20 episodes.

    Now, one year later, the employee again requests a = reasonable=20 accommodation related to his bipolar disorder. Under these facts, the = employer=20 may ask for reasonable documentation on the need for the accommodation = (if the=20 need is not obvious), but it cannot ask for documentation that the = person has=20 an ADA disability. The medical information provided one year ago = established=20 the existence of a long-term impairment that substantially limits a = major life=20 activity.

    Example C: An employee gives her employer a = letter from=20 her doctor, stating that the employee has asthma and needs the = employer to=20 provide her with an air filter. This letter contains insufficient = information=20 as to whether the asthma is an ADA disability because it does not = provide any=20 information as to its severity (i.e., whether it substantially limits = a major=20 life activity). Furthermore, the letter does not identify precisely = what=20 problem exists in the workplace that requires an air filter or any = other=20 reasonable accommodation. Therefore, the employer can request = additional=20 documentation.

  9. Is an employer required to provide the reasonable accommodation = that the=20 individual wants?=20

    The employer may choose among reasonable accommodations as long as = the=20 chosen accommodation is effective.(3= 5)=20 Thus, as part of the interactive process, the employer may offer = alternative=20 suggestions for reasonable accommodations and discuss their = effectiveness in=20 removing the workplace barrier that is impeding the individual with a=20 disability.

    If there are two possible reasonable accommodations, and one costs = more or=20 is more burdensome than the other, the employer may choose the less = expensive=20 or burdensome accommodation as long as it is effective (i.e., it would = remove=20 a workplace barrier, thereby providing the individual with an equal=20 opportunity to apply for a position, to perform the essential = functions of a=20 position, or to gain equal access to a benefit or privilege of = employment).=20 Similarly, when there are two or more effective accommodations, the = employer=20 may choose the one that is easier to provide. In either situation, the = employer does not have to show that it is an undue hardship to provide = the=20 more expensive or more difficult accommodation. If more than one = accommodation=20 is effective, "the preference of the individual with a disability = should be=20 given primary consideration. However, the employer providing the = accommodation=20 has the ultimate discretion to choose between effective = accommodations."(3= 6)

    Example A: An employee with a severe learning = disability has great difficulty reading. His supervisor sends him many = detailed memoranda which he often has trouble understanding. However, = he has=20 no difficulty understanding oral communication. The employee requests = that the=20 employer install a computer with speech output and that his supervisor = send=20 all memoranda through electronic mail which the computer can then read = to him.=20 The supervisor asks whether a tape recorded message would accomplish = the same=20 objective and the employee agrees that it would. Since both = accommodations are=20 effective, the employer may choose to provide the supervisor and = employee with=20 a tape recorder so that the supervisor can record her memoranda and = the=20 employee can listen to them.

    Example B: An attorney with a severe vision = disability=20 requests that her employer provide someone to read printed materials = that she=20 needs to review daily. The attorney explains that a reader enables her = to=20 review substantial amounts of written materials in an efficient = manner.=20 Believing that this reasonable accommodation would be too costly, the = employer=20 instead provides the attorney with a device that allows her to magnify = print=20 so that she can read it herself. The attorney can read print using = this=20 device, but with such great difficulty it significantly slows down her = ability=20 to review written materials. The magnifying device is ineffective as a = reasonable accommodation because it does not provide the attorney with = an=20 equal opportunity to attain the same level of performance as her = colleagues.=20 Without an equal opportunity to attain the same level of performance, = this=20 attorney is denied an equal opportunity to compete for promotions. In = this=20 instance, failure to provide the reader, absent undue hardship, would = violate=20 the ADA.

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

    An employer should respond expeditiously 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.(3= 7)=20 Similarly, the employer should act promptly to provide the reasonable=20 accommodation. Unnecessary delays can result in a violation of the = ADA.(3= 8)

    Example A: An employer provides parking for = all=20 employees. An employee who uses a wheelchair requests from his = supervisor an=20 accessible parking space, explaining that the spaces are so narrow = that there=20 is insufficient room for his van to extend the ramp that allows him to = get in=20 and out. The supervisor does not act on the request and does not = forward it to=20 someone with authority to respond. The employee makes a second request = to the=20 supervisor. Yet, two months after the initial request, nothing has = been done.=20 Although the supervisor never definitively denies the request, the = lack of=20 action under these circumstances amounts to a denial, and thus = violates the=20 ADA.

    Example B: An employee who is blind requests = adaptive=20 equipment for her computer as a reasonable accommodation. The employer = must=20 order this equipment and is informed that it will take three months to = receive=20 delivery. No other company sells the adaptive equipment the employee = needs.=20 The employer notifies the employee of the results of its investigation = and=20 that it has ordered the equipment. Although it will take three months = to=20 receive the equipment, the employer has moved as quickly as it can to = obtain=20 it and thus there is no ADA violation resulting from the delay. The = employer=20 and employee should determine what can be done so that the employee = can=20 perform his/her job as effectively as possible while waiting for the=20 equipment.

  11. May an employer require an individual with a disability to accept = a=20 reasonable accommodation that s/he does not want?=20

    No. An employer may not require a qualified individual with a = disability to=20 accept an accommodation. If, however, an employee needs a reasonable=20 accommodation to perform an essential function or to eliminate a = direct=20 threat, and refuses to accept an effective accommodation, s/he may not = be=20 qualified to remain in the job.(3= 9)

    REASONABLE ACCOMMODATION AND = JOB=20 APPLICANTS

  12. May an employer ask whether a reasonable accommodation is needed = when an=20 applicant has not asked for one?=20

    An employer may tell applicants what the hiring process involves = (e.g., an=20 interview, timed written test, or job demonstration), and may ask = applicants=20 whether they will need a reasonable accommodation for this = process.

    During the hiring process and before a conditional offer is made, = an=20 employer generally may not ask an applicant whether s/he needs a = reasonable=20 accommodation for the job, except when the employer knows that an = applicant=20 has a disability -- either because it is obvious or the applicant has=20 voluntarily disclosed the information -- and could reasonably believe = that the=20 applicant will need a reasonable accommodation to perform specific job = functions. If the applicant replies that s/he needs a reasonable=20 accommodation, the employer may inquire as to what type. (4= 0)

    After a conditional offer of employment is extended, an employer = may=20 inquire whether applicants will need reasonable accommodations related = to=20 anything connected with the job (i.e., job performance or access to=20 benefits/privileges of the job) as long as all entering employees in = the same=20 job category are asked this question. Alternatively, an employer may = ask a=20 specific applicant if s/he needs a reasonable accommodation if the = employer=20 knows that this applicant has a disability -- either because it is = obvious or=20 the applicant has voluntarily disclosed the information -- and could=20 reasonably believe that the applicant will need a reasonable = accommodation. If=20 the applicant replies that s/he needs a reasonable accommodation, the = employer=20 may inquire as to what type.(4= 1)

  13. Does an employer have to provide a reasonable accommodation to an=20 applicant with a disability even if it believes that it will be unable = to=20 provide this individual with a reasonable accommodation on the job?=20

    Yes. An employer must provide a reasonable accommodation to a = qualified=20 applicant with a disability that will enable the individual to have an = equal=20 opportunity to participate in the application process and to be = considered for=20 a job (unless it can show undue hardship). Thus, individuals with = disabilities=20 who meet initial requirements to be considered for a job should not be = excluded from the application process because the employer speculates, = based=20 on a request for reasonable accommodation for the application process, = that it=20 will be unable to provide the individual with reasonable accommodation = to=20 perform the job. In many instances, employers will be unable to = determine=20 whether an individual needs reasonable accommodation to perform a job = based=20 solely on a request for accommodation during the application process. = And even=20 if an individual will need reasonable accommodation to perform the = job, it may=20 not be the same type or degree of accommodation that is needed for the = application process. Thus, an employer should assess the need for=20 accommodations for the application process separately from those that = may be=20 needed to perform the job. (4= 2)

    Example A: An employer is impressed with an = applicant's=20 resume and contacts the individual to come in for an interview. The = applicant,=20 who is deaf, requests a sign language interpreter for the interview. = The=20 employer cancels the interview and refuses to consider further this = applicant=20 because it believes it would have to hire a full-time interpreter. The = employer has violated the ADA. The employer should have proceeded with = the=20 interview, using a sign language interpreter (absent undue hardship), = and at=20 the interview inquired to what extent the individual would need a sign = language interpreter to perform any essential functions requiring=20 communication with other people.

    Example B: An individual who has paraplegia = applies for=20 a secretarial position. Because the office has two steps at the = entrance, the=20 employer arranges for the applicant to take a typing test, a = requirement of=20 the application process, at a different location. The applicant fails = the=20 test. The employer does not have to provide any further reasonable=20 accommodations for this individual because she is no longer qualified = to=20 continue with the application process.

    REASONABLE ACCOMMODATION = RELATED TO THE=20 BENEFITS AND PRIVILEGES OF EMPLOYMENT (4= 3)

    The ADA requires employers to provide reasonable accommodations so = that=20 employees with disabilities can enjoy the "benefits and privileges of=20 employment" equal to those enjoyed by similarly-situated employees = without=20 disabilities. Benefits and privileges of employment include, but are = not=20 limited to, employer-sponsored: (1) training, (2) services (e.g., = employee=20 assistance programs (EAP's), credit unions, cafeterias, lounges, = gymnasiums,=20 auditoriums, transportation), and (3) parties or other social = functions (e.g.,=20 parties to celebrate retirements and birthdays, and company = outings).(4= 4)If=20 an employee with a disability needs a reasonable accommodation in = order to=20 gain access to, and have an equal opportunity to participate in, these = benefits and privileges, then the employer must provide the = accommodation=20 unless it can show undue hardship.

  14. Does an employer have to provide reasonable accommodation to = enable an=20 employee with a disability to have equal access to information = communicated in=20 the workplace to non-disabled employees?=20

    Yes. Employers provide information to employees through different = means,=20 including computers, bulletin boards, mailboxes, posters, and public = address=20 systems. Employers must ensure that employees with disabilities have = access to=20 information that is provided to other similarly-situated employees = without=20 disabilities, regardless of whether they need it to perform their = jobs.

    Example A: An employee who is blind has = adaptive=20 equipment for his computer that integrates him into the network with = other=20 employees, thus allowing communication via electronic mail and access = to the=20 computer bulletin board. When the employer installs upgraded computer=20 equipment, it must provide new adaptive equipment in order for the = employee to=20 be integrated into the new networks, absent undue hardship. = Alternative=20 methods of communication (e.g., sending written or telephone messages = to the=20 employee instead of electronic mail) are likely to be ineffective = substitutes=20 since electronic mail is used by every employee and there is no = effective way=20 to ensure that each one will always use alternative measures to ensure = that=20 the blind employee receives the same information that is being = transmitted via=20 computer.

    Example B: An employer authorizes the Human = Resources=20 Director to use a public address system to remind employees about = special=20 meetings and to make certain announcements. In order to make this = information=20 accessible to a deaf employee, the Human Resources Director arranges = to send=20 in advance an electronic mail message to the deaf employee conveying = the=20 information that will be broadcast. The Human Resources Director is = the only=20 person who uses the public address system; therefore, the employer can = ensure=20 that all public address messages are sent, via electronic mail, to the = deaf=20 employee. Thus, the employer is providing this employee with equal = access to=20 office communications.

  15. Must an employer provide reasonable accommodation so that an = employee may=20 attend training programs?=20

    Yes. Employers must provide reasonable accommodation (e.g., sign = language=20 interpreters; written materials produced in alternative formats, such = as=20 braille, large print, or on audio- cassette) that will provide = employees with=20 disabilities with an equal opportunity to participate in = employer-sponsored=20 training, absent undue hardship. This obligation extends to in-house = training,=20 as well as to training provided by an outside entity. Similarly, the = employer=20 has an obligation to provide reasonable accommodation whether the = training=20 occurs on the employer's premises or elsewhere.

    Example A: XYZ Corp. has signed a contract = with Super=20 Trainers, Inc., to provide mediation training at its facility to all = of XYZ's=20 Human Resources staff. One staff member is blind and requests that = materials=20 be provided in braille. Super Trainers refuses to provide the = materials in=20 braille. XYZ maintains that it is the responsibility of Super Trainers = and=20 sees no reason why it should have to arrange and pay for the braille = copy.

    Both XYZ (as an employer covered under Title I of = the ADA) and=20 Super Trainers (as a public accommodation covered under Title III of = the=20 ADA)(4= 5)=20 have obligations to provide materials in alternative formats. This = fact,=20 however, does not excuse either one from their respective obligations. = If=20 Super Trainers refuses to provide the braille version, despite its = Title III=20 obligations, XYZ still retains its obligation to provide it as a = reasonable=20 accommodation, absent undue hardship.

    Employers arranging with an outside entity to = provide training=20 may wish to avoid such problems by specifying in the contract who has = the=20 responsibility to provide appropriate reasonable accommodations. = Similarly,=20 employers should ensure that any offsite training will be held in an=20 accessible facility if they have an employee who, because of a = disability,=20 requires such an accommodation.

    Example B: XYZ Corp. arranges for one of its = employees=20 to provide CPR training. This three-hour program is optional. A deaf = employee=20 wishes to take the training and requests a sign language interpreter. = XYZ must=20 provide the interpreter because the CPR training is a benefit that XYZ = offers=20 all employees, even though it is optional.

    TYPES OF REASONABLE ACCOMMODATIONS = RELATED TO=20 JOB PERFORMANCE(4= 6)

    Below are discussed certain types of reasonable accommodations = related to=20 job performance.

    Job Restructuring

    Job restructuring includes modifications such as:

    • reallocating or redistributing marginal job functions that an = employee=20 is unable to perform because of a disability; and=20
    • altering when and/or how a function, essential or marginal, is=20 performed.(4= 7)=20

    An employer never has to reallocate essential functions as a = reasonable=20 accommodation, but can do so if it wishes.

  16. If, as a reasonable accommodation, an employer restructures an = employee's=20 job to eliminate some marginal functions, may the employer require the = employee to take on other marginal functions that s/he can perform?=20

    Yes. An employer may switch the marginal functions of two (or more) = employees in order to restructure a job as a reasonable = accommodation.

    Example: A cleaning crew works in an office = building.=20 One member of the crew wears a prosthetic leg which enables him to = walk very=20 well, but climbing steps is painful and difficult. Although he can = perform his=20 essential functions without problems, he cannot perform the marginal = function=20 of sweeping the steps located throughout the building. The marginal = functions=20 of a second crew member include cleaning the small kitchen in the = employee's=20 lounge, which is something the first crew member can perform. The = employer can=20 switch the marginal functions performed by these two employees.

    Leave

    Permitting the use of accrued paid leave, or unpaid leave, is a = form of=20 reasonable accommodation when necessitated by an employee's = disability.(4= 8)=20 An employer does not have to provide paid leave beyond that which is = provided=20 to similarly-situated employees. Employers should allow an employee = with a=20 disability to exhaust accrued paid leave first and then provide unpaid = leave.(4= 9)=20 For example, if employees get 10 days of paid leave, and an employee = with a=20 disability needs 15 days of leave, the employer should allow the = individual to=20 use 10 days of paid leave and 5 days of unpaid leave.

    An employee with a disability may need leave for a number of = reasons=20 related to the disability, including, but not limited to:

    • obtaining medical treatment (e.g., surgery, psychotherapy, = substance=20 abuse treatment, or dialysis); rehabilitation services; or physical = or=20 occupational therapy;=20
    • recuperating from an illness or an episodic manifestation of the = disability;=20
    • obtaining repairs on a wheelchair, accessible van, or prosthetic = device;=20
    • avoiding temporary adverse conditions in the work environment = (for=20 example, an air-conditioning breakdown causing unusually warm = temperatures=20 that could seriously harm an employee with multiple sclerosis);=20
    • training a service animal (e.g., a guide dog); or=20
    • receiving training in the use of braille or to learn sign = language.=20
  17. May an employer apply a "no-fault" leave policy, under which = employees are=20 automatically terminated after they have been on leave for a certain = period of=20 time, to an employee with a disability who needs leave beyond the set = period?=20

    No. If an employee with a disability needs additional unpaid leave = as a=20 reasonable accommodation, the employer must modify its "no-fault" = leave policy=20 to provide the employee with the additional leave, unless it can show = that:=20 (1) there is another effective accommodation that would enable the = person to=20 perform the essential functions of his/her position, or (2) granting=20 additional leave would cause an undue hardship. Modifying workplace = policies,=20 including leave policies, is a form of reasonable accommodation.(5= 0)

  18. Does an employer have to hold open an employee's job as a = reasonable=20 accommodation?=20

    Yes. An employee with a disability who is granted leave as a = reasonable=20 accommodation is entitled to return to his/her same position unless = the=20 employer demonstrates that holding open the position would impose an = undue=20 hardship.(5= 1)

    If an employer cannot hold a position open during the entire leave = period=20 without incurring undue hardship, the employer must consider whether = it has a=20 vacant, equivalent position for which the employee is qualified and to = which=20 the employee can be reassigned to continue his/her leave for a = specific period=20 of time and then, at the conclusion of the leave, can be returned to = this new=20 position.(5= 2)

    Example: An employee needs eight months of = leave for=20 treatment and recuperation related to a disability. The employer = grants the=20 request, but after four months the employer determines that it can no = longer=20 hold open the position for the remaining four months without incurring = undue=20 hardship. The employer must consider whether it has a vacant, = equivalent=20 position to which the employee can be reassigned for the remaining = four months=20 of leave, at the end of which time the employee would return to work = in that=20 new position. If an equivalent position is not available, the employer = must=20 look for a vacant position at a lower level. Continued leave is not = required=20 as a reasonable accommodation if a vacant position at a lower level is = also=20 unavailable.

  19. Can an employer penalize an employee for work missed during leave = taken as=20 a reasonable accommodation?=20

    No. To do so would be retaliation for the employee's use of a = reasonable=20 accommodation to which s/he is entitled under the law.(5= 3)=20 Moreover, such punishment would make the leave an ineffective = accommodation,=20 thus making an employer liable for failing to provide a reasonable=20 accommodation.(5= 4)

    Example A: A salesperson took five months of = leave as a=20 reasonable accommodation. The company compares the sales records of = all=20 salespeople over a one-year period, and any employee whose sales fall = more=20 than 25% below the median sales performance of all employees is = automatically=20 terminated. The employer terminates the salesperson because she had = fallen=20 below the required performance standard. The company did not consider = that the=20 reason for her lower sales performance was her five-month leave of = absence;=20 nor did it assess her productivity during the period she did work = (i.e.,=20 prorate her productivity).

    Penalizing the salesperson in this manner = constitutes=20 retaliation and a denial of reasonable accommodation.

    Example B: Company X is having a = reduction-in-force.=20 The company decides that any employee who has missed more than four = weeks in=20 the past year will be terminated. An employee took five weeks of leave = for=20 treatment of his disability. The company cannot count those five weeks = in=20 determining whether to terminate this employee.(5= 5)

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

    Yes, if the employer's reasonable accommodation would be effective = and=20 eliminate the need for leave.(5= 6)=20 An employer need not provide an employee's preferred accommodation as = long as=20 the employer provides an effective accommodation.(5= 7)=20 Accordingly, in lieu of providing leave, an employer may provide a = reasonable=20 accommodation that requires an employee to remain on the job (e.g.,=20 reallocation of marginal functions or temporary transfer) as long as = it does=20 not interfere with the employee's ability to address his/her medical = needs.=20 The employer is obligated, however, to restore the employee's full = duties or=20 to return the employee to his/her original position once s/he no = longer needs=20 the reasonable accommodation.

    Example A: An employee with emphysema = requests ten=20 weeks of leave for surgery and recuperation related to his disability. = In=20 discussing this request with the employer, the employee states that he = could=20 return to work after seven weeks if, during his first three weeks = back, he=20 could work part-time and eliminate two marginal functions that require = lots of=20 walking. If the employer provides these accommodations, then it can = require=20 the employee to return to work after seven weeks.

    Example B: An employee's disability is = getting more=20 severe and her doctor recommends surgery to counteract some of the = effects.=20 After receiving the employee's request for leave for the surgery, the = employer=20 proposes that it provide certain equipment which it believes will = mitigate the=20 effects of the disability and delay the need for leave to get surgery. = The=20 employer's proposed accommodation is not effective because it = interferes with=20 the employee's ability to get medical treatment.

  21. How should an employer handle leave for an employee covered by = both the=20 ADA and the Family and Medical Leave Act (FMLA)?(5= 8)=20

    An employer should determine an employee's rights under each = statute=20 separately, and then consider whether the two statutes overlap = regarding the=20 appropriate actions to take.(5= 9)

    Under the ADA, an employee who needs leave related to his/her = disability is=20 entitled to such leave if there is no other effective accommodation = and the=20 leave will not cause undue hardship. An employer must allow the = individual to=20 use any accrued paid leave first, but, if that is insufficient to = cover the=20 entire period, then the employer should grant unpaid leave. An = employer must=20 continue an employee's health insurance benefits during his/her leave = period=20 only if it does so for other employees in a similar leave status. As = for the=20 employee's position, the ADA requires that the employer hold it open = while the=20 employee is on leave unless it can show that doing so causes undue = hardship.=20 When the employee is ready to return to work, the employer must allow = the=20 individual to return to the same position (assuming that there was no = undue=20 hardship in holding it open) if the employee is still qualified (i.e., = the=20 employee can perform the essential functions of the position with or = without=20 reasonable accommodation).

    If it is an undue hardship under the ADA to hold open an employee's = position during a period of leave, or an employee is no longer = qualified to=20 return to his/her original position, then the employer must reassign = the=20 employee (absent undue hardship) to a vacant position for which s/he = is=20 qualified.

    Under the FMLA, an eligible employee is entitled to a maximum of 12 = weeks=20 of leave per 12 month period. The FMLA guarantees the right of the = employee to=20 return to the same position or to an equivalent one.(6= 0)=20 An employer must allow the individual to use any accrued paid leave = first, but=20 if that is insufficient to cover the entire period, then the employer = should=20 grant unpaid leave. The FMLA requires an employer to continue the = employee's=20 health insurance coverage during the leave period, provided the = employee pays=20 his/her share of the premiums.

    Example A: An employee with an ADA disability = needs 13=20 weeks of leave for treatment related to the disability. The employee = is=20 eligible under the FMLA for 12 weeks of leave (the maximum available), = so this=20 period of leave constitutes both FMLA leave and a reasonable = accommodation.=20 Under the FMLA, the employer could deny the employee the thirteenth = week of=20 leave. But, because the employee is also covered under the ADA, the = employer=20 cannot deny the request for the thirteenth week of leave unless it can = show=20 undue hardship. The employer may consider the impact on its operations = caused=20 by the initial 12-week absence, along with other undue hardship = factors.(6= 1)

    Example B: An employee with an ADA disability = has taken=20 10 weeks of FMLA leave and is preparing to return to work. The = employer wants=20 to put her in an equivalent position rather than her original one. = Although=20 this is permissible under the FMLA, the ADA requires that the employer = return=20 the employee to her original position. Unless the employer can show = that this=20 would cause an undue hardship, or that the employee is no longer = qualified for=20 her original position (with or without reasonable accommodation), the = employer=20 must reinstate the employee to her original position.

    Example C: An employee with an ADA disability = has taken=20 12 weeks of FMLA leave. He notifies his employer that he is ready to = return to=20 work, but he no longer is able to perform the essential functions of = his=20 position or an equivalent position. Under the FMLA, the employer could = terminate his employment,(6= 2)=20 but under the ADA the employer must consider whether the employee = could=20 perform the essential functions with reasonable accommodation (e.g.,=20 additional leave, part-time schedule, job restructuring, or use of = specialized=20 equipment). If not, the ADA requires the employer to reassign the = employee if=20 there is a vacant position available for which he is qualified, with = or=20 without reasonable accommodation, and there is no undue hardship.

    Modified or Part-Time=20 Schedule

  22. Must an employer allow an employee with a disability to work a = modified or=20 part-time schedule as a reasonable accommodation, absent undue = hardship?=20

    Yes.(6= 3)=20 A modified schedule may involve adjusting arrival or departure = times,=20 providing periodic breaks, altering when certain functions are = performed,=20 allowing an employee to use accrued paid leave, or providing = additional unpaid=20 leave. An employer must provide a modified or part-time schedule when = required=20 as a reasonable accommodation, absent undue hardship, even if it does = not=20 provide such schedules for other employees.(6= 4)

    Example A: An employee with HIV infection = must take=20 medication on a strict schedule. The medication causes extreme nausea = about=20 one hour after ingestion, and generally lasts about 45 minutes. The = employee=20 asks that he be allowed to take a daily 45-minute break when the = nausea=20 occurs. The employer must grant this request absent undue = hardship.

    For certain positions, the time during which an essential function = is=20 performed may be critical. This could affect whether an employer can = grant a=20 request to modify an employee's schedule.(6= 5)=20 Employers should carefully assess whether modifying the hours could=20 significantly disrupt their operations -- that is, cause undue = hardship -- or=20 whether the essential functions may be performed at different times = with=20 little or no impact on the operations or the ability of other = employees to=20 perform their jobs.

    If modifying an employee's schedule poses an undue hardship, an = employer=20 must consider reassignment to a vacant position that would enable the = employee=20 to work during the hours requested. (6= 6)

    Example B: A day care worker requests that = she be=20 allowed to change her hours from 7:00 a.m. - 3:00 p.m. to 10:00 a.m. - = 6:00=20 p.m. because of her disability. The day care center is open from 7:00 = a.m. -=20 7:00 p.m. and it will still have sufficient coverage at the beginning = of the=20 morning if it grants the change in hours. In this situation, the = employer must=20 provide the reasonable accommodation.

    Example C: An employee works for a morning = newspaper,=20 operating the printing presses which run between 10 p.m. and 3 a.m. = Due to her=20 disability, she needs to work in the daytime. The essential function = of her=20 position, operating the printing presses, requires that she work at = night=20 because the newspaper cannot be printed during the daytime hours. = Since the=20 employer cannot modify her hours, it must consider whether it can = reassign her=20 to a different position.

  23. How should an employer handle requests for modified or part-time = schedules=20 for an employee covered by both the ADA and the Family and Medical = Leave Act=20 (FMLA)?(6= 7)=20

    An employer should determine an employee's rights under each = statute=20 separately, and then consider whether the two statutes overlap = regarding the=20 appropriate actions to take.

    Under the ADA, an employee who needs a modified or part-time = schedule=20 because of his/her disability is entitled to such a schedule if there = is no=20 other effective accommodation and it will not cause undue hardship. If = there=20 is undue hardship, the employer must reassign the employee if there is = a=20 vacant position for which s/he is qualified and which would allow the = employer=20 to grant the modified or part-time schedule (absent undue hardship).(6= 8)An=20 employee receiving a part-time schedule as a reasonable accommodation = is=20 entitled only to the benefits, including health insurance, that other=20 part-time employees receive. Thus, if non- disabled part-time workers = are not=20 provided with health insurance, then the employer does not have to = provide=20 such coverage to an employee with a disability who is given a = part-time=20 schedule as a reasonable accommodation.

    Under the FMLA, an eligible employee is entitled to take leave=20 intermittently or on a part-time basis, when medically necessary, = until s/he=20 has used up the equivalent of 12 workweeks in a 12- month period. When = such=20 leave is foreseeable based on planned medical treatment, an employer = may=20 require the employee to temporarily transfer (for the duration of the = leave)=20 to an available alternative position, with equivalent pay and = benefits, for=20 which the employee is qualified and which better suits his/her reduced = hours.(6= 9)=20 An employer always must maintain the employee's existing level of = coverage=20 under a group health plan during the period of FMLA leave, provided = the=20 employee pays his/her share of the premium.(7= 0)

    Example: An employee with an ADA disability = requests=20 that she be excused from work one day a week for the next six months = because=20 of her disability. If this employee is eligible for a modified = schedule under=20 the FMLA, the employer must provide the requested leave under that = statute if=20 it is medically necessary, even if the leave would be an undue = hardship under=20 the ADA.

    Modified Workplace=20 Policies

  24. Is it a reasonable accommodation to modify a workplace policy?=20

    Yes. It is a reasonable accommodation to modify a workplace policy = when=20 necessitated by an individual's disability-related limitations,(7= 1)=20 absent undue hardship. But, reasonable accommodation only requires = that the=20 employer modify the policy for an employee who requires such action = because of=20 a disability; therefore, the employer may continue to apply the policy = to all=20 other employees.

    Example: An employer has a policy prohibiting = employees=20 from eating or drinking at their workstations. An employee with=20 insulin-dependent diabetes explains to her employer that she may = occasionally=20 take too much insulin and, in order to avoid going into insulin shock, = she=20 must immediately eat a candy bar or drink fruit juice. The employee = requests=20 permission to keep such food at her workstation and to eat or drink = when her=20 insulin level necessitates. The employer must modify its policy to = grant this=20 request, absent undue hardship. Similarly, an employer might have to = modify a=20 policy to allow an employee with a disability to bring in a small=20 refrigerator, or to use the employer's refrigerator, to store = medication that=20 must be taken during working hours.

    Granting an employee time off from work or an adjusted work = schedule as a=20 reasonable accommodation may involve modifying leave or attendance = procedures=20 or policies. For example, it would be a reasonable accommodation to = modify a=20 policy requiring employees to schedule vacation time in advance if an=20 otherwise qualified individual with a disability needed to use accrued = vacation time on an unscheduled basis because of disability- related = medical=20 problems, barring undue hardship.(7= 2)Furthermore,=20 an employer may be required to provide additional leave to an employee = with a=20 disability as a reasonable accommodation in spite of a "no-fault" = leave=20 policy, unless the provision of such leave would impose an undue = hardship.(7= 3)

    In some instances, an employer's refusal to modify a workplace = policy, such=20 as a leave or attendance policy, could constitute disparate treatment = as well=20 as a failure to provide a reasonable accommodation. For example, an = employer=20 may have a policy requiring employees to notify supervisors before = 9:00 a.m.=20 if they are unable to report to work. If an employer would excuse an = employee=20 from complying with this policy because of emergency hospitalization = due to a=20 car accident, then the employer must do the same thing when the = emergency=20 hospitalization is due to a disability.(7= 4)

    Reassignment (7= 5)

    The ADA specifically lists "reassignment to a vacant position" as a = form of=20 reasonable accommodation.(7= 6)=20 This type of reasonable accommodation must be provided to an employee = who,=20 because of a disability, can no longer perform the essential functions = of=20 his/her current position, with or without reasonable accommodation, = unless the=20 employer can show that it would be an undue hardship.(7= 7)

    An employee must be "qualified" for the new position. An employee = is=20 "qualified" for a position if s/he: (1) satisfies the requisite skill, = experience, education, and other job-related requirements of the = position, and=20 (2) can perform the essential functions of the new position, with or = without=20 reasonable accommodation.(7= 8)=20 The employee does not need to be the best qualified individual for the = position in order to obtain it as a reassignment.

    There is no obligation for the employer to assist the individual to = become=20 qualified. Thus, the employer does not have to provide training so = that the=20 employee acquires necessary skills to take a job.(7= 9)=20 The employer, however, would have to provide an employee with a = disability who=20 is being reassigned with any training that is normally provided to = anyone=20 hired for or transferred to the position.

    Example A: An employer is considering = reassigning an=20 employee with a disability to a position which requires the ability to = speak=20 Spanish in order to perform an essential function. The employee never = learned=20 Spanish and wants the employer to send him to a course to learn = Spanish. The=20 employer is not required to provide this training as part of the = obligation to=20 make a reassignment. Therefore, the employee is not qualified for this = position.

    Example B: An employer is considering = reassigning an=20 employee with a disability to a position in which she will contract = for goods=20 and services. The employee is qualified for the position. The employer = has its=20 own specialized rules regarding contracting that necessitate training = all=20 individuals hired for these positions. In this situation, the employer = must=20 provide the employee with this specialized training.

    Before considering reassignment as a reasonable accommodation, = employers=20 should first consider those accommodations that would enable an = employee to=20 remain in his/her current position. Reassignment is the reasonable=20 accommodation of last resort and is required only after it has been = determined=20 that: (1) there are no effective accommodations that will enable the = employee=20 to perform the essential functions of his/her current position, or (2) = all=20 other reasonable accommodations would impose an undue hardship.(8= 0)=20 However, if both the employer and the employee voluntarily agree that = transfer=20 is preferable to remaining in the current position with some form of=20 reasonable accommodation, then the employer may transfer the = employee.

    "Vacant" means that the position is available when the employee = asks for=20 reasonable accommodation, or that the employer knows that it will = become=20 available within a reasonable amount of time. A "reasonable amount of = time"=20 should be determined on a case-by-case basis considering relevant = facts, such=20 as whether the employer, based on experience, can anticipate that an=20 appropriate position will become vacant within a short period of = time.(8= 1)=20 A position is considered vacant even if an employer has posted a = notice or=20 announcement seeking applications for that position. The employer does = not=20 have to bump an employee from a job in order to create a vacancy; nor = does it=20 have to create a new position.(8= 2)

    Example C: An employer is seeking a = reassignment for an=20 employee with a disability. There are no vacant positions today, but = the=20 employer has just learned that another employee resigned and that that = position will become vacant in four weeks. The impending vacancy is = equivalent=20 to the position currently held by the employee with a disability. If = the=20 employee is qualified for that position, the employer must offer it to = him.

    Example D: An employer is seeking a = reassignment for an=20 employee with a disability. There are no vacant positions today, but = the=20 employer has just learned that an employee in an equivalent position = plans to=20 retire in six months. Although the employer knows that the employee = with a=20 disability is qualified for this position, the employer does not have = to offer=20 this position to her because six months is beyond a "reasonable amount = of=20 time." (If, six months from now, the employer decides to advertise the = position, it must allow the individual to apply for that position and = give the=20 application the consideration it deserves.)

    The employer must reassign the individual to a vacant position that = is=20 equivalent in terms of pay, status, or other relevant factors (e.g., = benefits,=20 geographical location) if the employee is qualified for the position. = If there=20 is no vacant equivalent position, the employer must reassign the = employee to a=20 vacant lower level position for which the individual is qualified. = Assuming=20 there is more than one vacancy for which the employee is qualified, = the=20 employer must place the individual in the position that comes closest = to the=20 employee's current position in terms of pay, status, etc.(8= 3)If=20 it is unclear which position comes closest, the employer should = consult with=20 the employee about his/her preference before determining the position = to which=20 the employee will be reassigned. Reassignment does not include giving = an=20 employee a promotion. Thus, an employee must compete for any vacant = position=20 that would constitute a promotion.

  25. Is a probationary employee entitled to reassignment?=20

    Employers cannot deny a reassignment to an employee solely because = s/he is=20 designated as "probationary." An employee with a disability is = eligible for=20 reassignment to a new position, regardless of whether s/he is = considered=20 "probationary," as long as the employee adequately performed the = essential=20 functions of the position, with or without reasonable accommodation, = before=20 the need for a reassignment arose.

    The longer the period of time in which an employee has adequately = performed=20 the essential functions, with or without reasonable accommodation, the = more=20 likely it is that reassignment is appropriate if the employee becomes = unable=20 to continue performing the essential functions of the current position = due to=20 a disability. If, however, the probationary employee has never = adequately=20 performed the essential functions, with or without reasonable = accommodation,=20 then s/he is not entitled to reassignment because s/he was never = "qualified"=20 for the original position. In this situation, the employee is similar = to an=20 applicant who applies for a job for which s/he is not qualified, and = then=20 requests reassignment. Applicants are not entitled to = reassignment.

    Example A: An employer designates all new = employees as=20 "probationary" for one year. An employee has been working successfully = for=20 nine months when she becomes disabled in a car accident. The employee, = due to=20 her disability, is unable to continue performing the essential = functions of=20 her current position, with or without reasonable accommodation, and = seeks a=20 reassignment. She is entitled to a reassignment if there is a vacant = position=20 for which she is qualified and it would not pose an undue = hardship.

    Example B: A probationary employee has been = working two=20 weeks, but has been unable to perform the essential functions of the = job=20 because of his disability. There are no reasonable accommodations that = would=20 permit the individual to perform the essential functions of the = position, so=20 the individual requests a reassignment. The employer does not have to = provide=20 a reassignment (even if there is a vacant position) because, as it = turns out,=20 the individual was never qualified -- i.e., the individual was never = able to=20 perform the essential functions of the position, with or without = reasonable=20 accommodation, for which he was hired.

  26. Must an employer offer reassignment as a reasonable accommodation = if it=20 does not allow any of its employees to transfer from one position to = another?=20

    Yes. The ADA requires employers to provide reasonable = accommodations to=20 individuals with disabilities, including reassignment, even though = they are=20 not available to others. Therefore, an employer who does not normally = transfer=20 employees would still have to reassign an employee with a disability, = unless=20 it could show that the reassignment caused an undue hardship. And, if = an=20 employer has a policy prohibiting transfers, it would have to modify = that=20 policy in order to reassign an employee with a disability, unless it = could=20 show undue hardship.(8= 4)

  27. Is an employer's obligation to offer reassignment to a vacant = position=20 limited to those vacancies within an employee's office, branch, = agency,=20 department, facility, personnel system (if the employer has more than = a single=20 personnel system), or geographical area?=20

    No. This is true even if the employer has a policy prohibiting = transfers=20 from one office, branch, agency, department, facility, personnel = system, or=20 geographical area to another. The ADA contains no language limiting = the=20 obligation to reassign only to positions within an office, branch, = agency,=20 etc.(8= 5)=20 Rather, the extent to which an employer must search for a vacant = position will=20 be an issue of undue hardship.(8= 6)If=20 an employee is being reassigned to a different geographical area, the = employee=20 must pay for any relocation expenses unless the employer routinely = pays such=20 expenses when granting voluntary transfers to other employees.

  28. Does an employer have to notify an employee with a disability = about vacant=20 positions, or is it the employee's responsibility to learn what jobs = are=20 vacant?=20

    The employer is in the best position to know which jobs are vacant = or will=20 become vacant within a reasonable period of time.(8= 7)=20 In order to narrow the search for potential vacancies, the employer, = as part=20 of the interactive process, should ask the employee about his/her=20 qualifications and interests. Based on this information, the employer = is=20 obligated to inform an employee about vacant positions for which s/he = may be=20 eligible as a reassignment. However, an employee should assist the = employer in=20 identifying appropriate vacancies to the extent that the employee has = access=20 to information about them. If the employer does not know whether the = employee=20 is qualified for a specific position, the employer can discuss with = the=20 employee his/her qualifications.(8= 8)

    An employer should proceed as expeditiously as possible in = determining=20 whether there are appropriate vacancies. The length of this process = will vary=20 depending on how quickly an employer can search for and identify = whether an=20 appropriate vacant position exists. For a very small employer, this = process=20 may take one day; for other employers this process may take several = weeks.(8= 9)When=20 an employer has completed its search, identified whether there are any = vacancies (including any positions that will become vacant in a = reasonable=20 amount of time), notified the employee of the results, and either = offered an=20 appropriate vacancy to the employee or informed him/her that no = appropriate=20 vacancies are available, the employer will have fulfilled its = obligation.

  29. Does reassignment mean that the employee is permitted to compete = for a=20 vacant position?=20

    No. Reassignment means that the employee gets the vacant position = if s/he=20 is qualified for it. Otherwise, reassignment would be of little value = and=20 would not be implemented as Congress intended.(9= 0)

  30. If an employee is reassigned to a lower level position, must an = employer=20 maintain his/her salary from the higher level position?=20

    No, unless the employer transfers employees without disabilities to = lower=20 level positions and maintains their original salaries.(9= 1)

  31. Must an employer provide a reassignment if it would violate a = seniority=20 system?=20

    Generally, it will be "unreasonable" to reassign an employee with a = disability if doing so would violate the rules of a seniority = system.(9= 2)=20 This is true both for collectively bargained seniority systems and = those=20 unilaterally imposed by management. Seniority systems governing job = placement=20 give employees expectations of consistent, uniform treatment = expectations that=20 would be undermined if employers had to make the type of = individualized,=20 case-by-case assessment required by the reasonable accommodation = process.(9= 3)

    However, if there are "special circumstances" that "undermine the=20 employees' expectations of consistent, uniform treatment," it may be a = "reasonable accommodation," absent undue hardship, to reassign an = employee=20 despite the existence of a seniority system. For example, "special=20 circumstances" may exist where an employer retains the right to alter = the=20 seniority system unilaterally, and has exercised that right fairly = frequently,=20 thereby lowering employee expectations in the seniority system.(9= 4)In=20 this circumstance, one more exception (i.e., providing the = reassignment to an=20 employee with a disability) may not make a difference.(9= 5)Alternatively,=20 a seniority system may contain exceptions, such that one more = exception is=20 unlikely to matter.(9= 6)=20 Another possibility is that a seniority system might contain = procedures for=20 making exceptions, thus suggesting to employees that seniority does = not=20 automatically guarantee access to a specific job.

    OTHER REASONABLE ACCOMMODATION = ISSUES=20 (97)

  32. If an employer has provided one reasonable accommodation, does it = have to=20 provide additional reasonable accommodations requested by an = individual with a=20 disability?=20

    The duty to provide reasonable accommodation is an ongoing one.(9= 8)=20 Certain individuals require only one reasonable accommodation, while = others=20 may need more than one. Still others may need one reasonable = accommodation for=20 a period of time, and then at a later date, require another type of = reasonable=20 accommodation. If an individual requests multiple reasonable = accommodations,=20 s/he is entitled only to those accommodations that are necessitated by = a=20 disability and that will provide an equal employment opportunity.

    An employer must consider each request for reasonable accommodation = and=20 determine: (1) whether the accommodation is needed, (2) if needed, = whether the=20 accommodation would be effective, and (3) if effective, whether = providing the=20 reasonable accommodation would impose an undue hardship. If a = reasonable=20 accommodation turns out to be ineffective and the employee with a = disability=20 remains unable to perform an essential function, the employer must = consider=20 whether there would be an alternative reasonable accommodation that = would not=20 pose an undue hardship. If there is no alternative accommodation, then = the=20 employer must attempt to reassign the employee to a vacant position = for which=20 s/he is qualified, unless to do so would cause an undue hardship.

  33. Does an employer have to change a person's supervisor as a form of = reasonable accommodation?=20

    No. An employer does not have to provide an employee with a new = supervisor=20 as a reasonable accommodation. Nothing in the ADA, however, prohibits = an=20 employer from doing so. Furthermore, although an employer is not = required to=20 change supervisors, the ADA may require that supervisory methods be = altered as=20 a form of reasonable accommodation.(9= 9)Also,=20 an employee with a disability is protected from disability-based=20 discrimination by a supervisor, including disability-based = harassment.

    Example: A supervisor frequently schedules = team=20 meetings on a day's notice often notifying staff in the afternoon that = a=20 meeting will be held on the following morning. An employee with a = disability=20 has missed several meetings because they have conflicted with=20 previously-scheduled physical therapy sessions. The employee asks that = the=20 supervisor give her two to three days' notice of team meetings so = that, if=20 necessary, she can reschedule the physical therapy sessions. Assuming = no undue=20 hardship would result, the supervisor must make this reasonable = accommodation.=20

  34. Does an employer have to allow an employee with a disability to = work at=20 home as a reasonable accommodation?=20

    An employer must modify its policy concerning where work is = performed if=20 such a change is needed as a reasonable accommodation, but only if = this=20 accommodation would be effective and would not cause an undue = hardship.(= 100)Whether=20 this accommodation is effective will depend on whether the essential = functions=20 of the position can be performed at home. There are certain jobs in = which the=20 essential functions can only be performed at the work site -- e.g., = food=20 server, cashier in a store. For such jobs, allowing an employee to = work at=20 home is not effective because it does not enable an employee to = perform=20 his/her essential functions. Certain considerations may be critical in = determining whether a job can be effectively performed at home, = including (but=20 not limited to) the employer's ability to adequately supervise the = employee=20 and the employee's need to work with certain equipment or tools that = cannot be=20 replicated at home. In contrast, employees may be able to perform the=20 essential functions of certain types of jobs at home (e.g., = telemarketer,=20 proofreader).(= 101)=20 For these types of jobs, an employer may deny a request to work at = home if it=20 can show that another accommodation would be effective or if working = at home=20 will cause undue hardship.

  35. Must an employer withhold discipline or termination of an employee = who,=20 because of a disability, violated a conduct rule that is job-related = for the=20 position in question and consistent with business necessity?=20

    No. An employer never has to excuse a violation of a uniformly = applied=20 conduct rule that is job-related and consistent with business = necessity. This=20 means, for example, that an employer never has to tolerate or excuse = violence,=20 threats of violence, stealing, or destruction of property. An employer = may=20 discipline an employee with a disability for engaging in such = misconduct if it=20 would impose the same discipline on an employee without a = disability.

  36. Must an employer provide a reasonable accommodation for an = employee with a=20 disability who violated a conduct rule that is job- related for the = position=20 in question and consistent with business necessity?=20

    An employer must make reasonable accommodation to enable an = otherwise=20 qualified employee with a disability to meet such a conduct standard = in the=20 future, barring undue hardship, except where the punishment for the = violation=20 is termination.(= 102)Since=20 reasonable accommodation is always prospective, an employer is not = required to=20 excuse past misconduct even if it is the result of the individual's=20 disability.(= 103)=20 Possible reasonable accommodations could include adjustments to = starting=20 times, specified breaks, and leave if these accommodations will enable = an=20 employee to comply with conduct rules.(= 104)

    Example: An employee with major depression is = often=20 late for work because of medication side-effects that make him = extremely=20 groggy in the morning. His scheduled hours are 9:00 a.m. to 5:30 p.m., = but he=20 arrives at 9:00, 9:30, 10:00, or even 10:30 on any given day. His job=20 responsibilities involve telephone contact with the company's = traveling sales=20 representatives, who depend on him to answer urgent marketing = questions and=20 expedite special orders. The employer disciplines him for tardiness, = stating=20 that continued failure to arrive promptly during the next month will = result in=20 termination of his employment. The individual then explains that he = was late=20 because of a disability and needs to work on a later schedule. In this = situation, the employer may discipline the employee because he = violated a=20 conduct standard addressing tardiness that is job-related for the = position in=20 question and consistent with business necessity. The employer, = however, must=20 consider reasonable accommodation, barring undue hardship, to enable = this=20 individual to meet this standard in the future. For example, if this=20 individual can serve the company's sales representatives by regularly = working=20 a schedule of 10:00 a.m. to 6:30 p.m., a reasonable accommodation = would be to=20 modify his schedule so that he is not required to report for work = until 10:00=20 a.m.

  37. Is it a reasonable accommodation to make sure that an employee = takes=20 medication as prescribed?=20

    No. Medication monitoring is not a reasonable accommodation. = Employers have=20 no obligation to monitor medication because doing so does not remove a = workplace barrier. Similarly, an employer has no responsibility to = monitor an=20 employee's medical treatment or ensure that s/he is receiving = appropriate=20 treatment because such treatment does not involve modifying workplace=20 barriers.(= 105)

    It may be a form of reasonable accommodation, however, to give an = employee=20 a break in order that s/he may take medication, or to grant leave so = that an=20 employee may obtain treatment.

  38. Is an employer relieved of its obligation to provide reasonable=20 accommodation for an employee with a disability who fails to take = medication,=20 to obtain medical treatment, or to use an assistive device (such as a = hearing=20 aid)?=20

    No. The ADA requires an employer to provide reasonable = accommodation to=20 remove workplace barriers, regardless of what effect medication, other = medical=20 treatment, or assistive devices may have on an employee's ability to = perform=20 the job.(= 106)

    However, if an employee with a disability, with or without = reasonable=20 accommodation, cannot perform the essential functions of the position = or poses=20 a direct threat in the absence of medication, treatment, or an = assistive=20 device, then s/he is unqualified.

  39. Must an employer provide a reasonable accommodation that is needed = because=20 of the side effects of medication or treatment related to the = disability, or=20 because of symptoms or other medical conditions resulting from the = underlying=20 disability?=20

    Yes. The side effects caused by the medication that an employee = must take=20 because of the disability are limitations resulting from the = disability.=20 Reasonable accommodation extends to all limitations resulting from a=20 disability.

    Example A: An employee with cancer undergoes=20 chemotherapy twice a week, which causes her to be quite ill = afterwards. The=20 employee requests a modified schedule -- leave for the two days a week = of=20 chemotherapy. The treatment will last six weeks. Unless it can show = undue=20 hardship, the employer must grant this request.

    Similarly, any symptoms or related medical conditions resulting = from the=20 disability that cause limitations may also require reasonable = accommodation.(= 107)

    Example B: An employee, as a result of=20 insulin-dependent diabetes, has developed background retinopathy (a = vision=20 impairment). The employee, who already has provided documentation = showing his=20 diabetes is a disability, requests a device to enlarge the text on his = computer screen. The employer can request documentation that the = retinopathy=20 is related to the diabetes but the employee does not have to show that = the=20 retinopathy is an independent disability under the ADA. Since the = retinopathy=20 is a consequence of the diabetes (an ADA disability), the request must = be=20 granted unless undue hardship can be shown.

  40. Must an employer ask whether a reasonable accommodation is needed = when an=20 employee has not asked for one?=20

    Generally, no. As a general rule, the individual with a disability = -- who=20 has the most knowledge about the need for reasonable accommodation -- = must=20 inform the employer that an accommodation is needed.(= 108)

    However, an employer should initiate the reasonable accommodation=20 interactive process(= 109)=20 without being asked if the employer: (1) knows that the employee has a = disability, (2) knows, or has reason to know, that the employee is=20 experiencing workplace problems because of the disability, and (3) = knows, or=20 has reason to know, that the disability prevents the employee from = requesting=20 a reasonable accommodation. If the individual with a disability states = that=20 s/he does not need a reasonable accommodation, the employer will have=20 fulfilled its obligation.

    Example: An employee with mental retardation = delivers=20 messages at a law firm. He frequently mixes up messages for "R. = Miller" and=20 "T. Miller." The employer knows about the disability, suspects that = the=20 performance problem is a result of the disability, and knows that this = employee is unable to ask for a reasonable accommodation because of = his mental=20 retardation. The employer asks the employee about mixing up the two = names and=20 asks if it would be helpful to spell the first name of each person. = When the=20 employee says that would be better, the employer, as a reasonable=20 accommodation, instructs the receptionist to write the full first name = when=20 messages are left for one of the Messrs. Miller.

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

    An employer may ask an employee with a known disability whether = s/he needs=20 a reasonable accommodation when it reasonably believes that the = employee may=20 need an accommodation. For example, an employer could ask a deaf = employee who=20 is being sent on a business trip if s/he needs reasonable = accommodation. Or,=20 if an employer is scheduling a luncheon at a restaurant and is = uncertain about=20 what questions it should ask to ensure that the restaurant is = accessible for=20 an employee who uses a wheelchair, the employer may first ask the = employee. An=20 employer also may ask an employee with a disability who is having = performance=20 or conduct problems if s/he needs reasonable accommodation.(= 110)

  42. May an employer tell other employees that an individual is = receiving a=20 reasonable accommodation when employees ask questions about a coworker = with a=20 disability?=20

    No. An employer may not disclose that an employee is receiving a = reasonable=20 accommodation because this usually amounts to a disclosure that the = individual=20 has a disability. The ADA specifically prohibits the disclosure of = medical=20 information except in certain limited situations, which do not include = disclosure to coworkers.(= 111)

    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.

    Since responding to specific coworker questions may be difficult, = employers=20 might find it helpful before such questions are raised to provide all=20 employees with information about various laws that require employers = to meet=20 certain employee needs (e.g., the ADA and the Family and Medical Leave = Act),=20 while also requiring them to protect the privacy of employees. In = providing=20 general ADA information to employees, an employer may wish to = highlight the=20 obligation to provide reasonable accommodation, including the = interactive=20 process and different types of reasonable accommodations, and the = statute's=20 confidentiality protections. Such information could be delivered in=20 orientation materials, employee handbooks, notices accompanying = paystubs, and=20 posted flyers. Employers may wish to explore these and other = alternatives with=20 unions because they too are bound by the ADA's confidentiality = provisions.=20 Union meetings and bulletin boards may be further avenues for such = educational=20 efforts.

    As long as there is no coercion by an employer, an employee with a=20 disability may voluntarily choose to disclose to coworkers his/her = disability=20 and/or the fact that s/he is receiving a reasonable accommodation.

    UNDUE HARDSHIP ISSUES=20 (112)

    An employer does not have to provide a reasonable accommodation = that would=20 cause an "undue hardship" to the employer. Generalized conclusions = will not=20 suffice to support a claim of undue hardship. Instead, undue hardship = must be=20 based on an individualized assessment of current circumstances that = show that=20 a specific reasonable accommodation would cause significant difficulty = or=20 expense.(= 113)=20 A determination of undue hardship should be based on several factors,=20 including:

    • the nature and cost of the accommodation needed;=20
    • the overall financial resources of the facility making the = reasonable=20 accommodation; the number of persons employed at this facility; the = effect=20 on expenses and resources of the facility;=20
    • the overall financial resources, size, number of employees, and = type and=20 location of facilities of the employer (if the facility involved in = the=20 reasonable accommodation is part of a larger entity);=20
    • the type of operation of the employer, including the structure = and=20 functions of the workforce, the geographic separateness, and the=20 administrative or fiscal relationship of the facility involved in = making the=20 accommodation to the employer;=20
    • the impact of the accommodation on the operation of the = facility.(= 114)=20

    The ADA's legislative history indicates that Congress wanted = employers to=20 consider all possible sources of outside funding when assessing = whether a=20 particular accommodation would be too costly.(= 115)=20 Undue hardship is determined based on the net cost to the employer. = Thus, an=20 employer should determine whether funding is available from an outside = source,=20 such as a state rehabilitation agency, to pay for all or part of the=20 accommodation.(= 116)=20 In addition, the employer should determine whether it is eligible for = certain=20 tax credits or deductions to offset the cost of the accommodation. = Also, to=20 the extent that a portion of the cost of an accommodation causes undue = hardship, the employer should ask the individual with a disability if = s/he=20 will pay the difference.

    If an employer determines that one particular reasonable = accommodation will=20 cause undue hardship, but a second type of reasonable accommodation = will be=20 effective and will not cause an undue hardship, then the employer must = provide=20 the second accommodation.

    An employer cannot claim undue hardship based on employees' (or = customers')=20 fears or prejudices toward the individual's disability.(= 117)=20 Nor can undue hardship be based on the fact that provision of a = reasonable=20 accommodation might have a negative impact on the morale of other = employees.=20 Employers, however, may be able to show undue hardship where provision = of a=20 reasonable accommodation would be unduly disruptive to other = employees's=20 ability to work.

    Example A: An employee with breast cancer is = undergoing=20 chemotherapy. As a consequence of the treatment, the employee is = subject to=20 fatigue and finds it difficult to keep up with her regular workload. = So that=20 she may focus her reduced energy on performing her essential = functions, the=20 employer transfers three of her marginal functions to another employee = for the=20 duration of the chemotherapy treatments. The second employee is = unhappy at=20 being given extra assignments, but the employer determines that the = employee=20 can absorb the new assignments with little effect on his ability to = perform=20 his own assignments in a timely manner. Since the employer cannot show = significant disruption to its operation, there is no undue hardship.(= 118)

    Example B: A convenience store clerk with = multiple=20 sclerosis requests that he be allowed to go from working full-time to = part-=20 time as a reasonable accommodation because of his disability. The = store=20 assigns two clerks per shift, and if the first clerk's hours are = reduced, the=20 second clerk's workload will increase significantly beyond his ability = to=20 handle his responsibilities. The store determines that such an = arrangement=20 will result in inadequate coverage to serve customers in a timely = manner, keep=20 the shelves stocked, and maintain store security. Thus, the employer = can show=20 undue hardship based on the significant disruption to its operations = and,=20 therefore, can refuse to reduce the employee's hours. The employer, = however,=20 should explore whether any other reasonable accommodation will assist = the=20 store clerk without causing undue hardship.

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

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

    Example A: A crane operator, due to his = disability,=20 requests an adjustment in his work schedule so that he starts work at = 8:00=20 a.m. rather than 7:00 a.m., and finishes one hour later in the = evening. The=20 crane operator works with three other employees who cannot perform = their jobs=20 without the crane operator. As a result, if the employer grants this = requested=20 accommodation, it would have to require the other three workers to = adjust=20 their hours, find other work for them to do from 7:00 to 8:00, or have = the=20 workers do nothing. The ADA does not require the employer to take any = of these=20 actions because they all significantly disrupt the operations of the = business.=20 Thus, the employer can deny the requested accommodation, but should = discuss=20 with the employee if there are other possible accommodations that = would not=20 result in undue hardship.

    Example B: A computer programmer works with a = group of=20 people to develop new software. There are certain tasks that the = entire group=20 must perform together, but each person also has individual = assignments. It is=20 through habit, not necessity, that they have often worked together = first thing=20 in the morning.

    The programmer, due to her disability, requests an = adjustment=20 in her work schedule so that she works from 10:00 a.m. - 7:00 p.m. = rather than=20 9:00 a.m. - 6:00 p.m. In this situation, the employer could grant the=20 adjustment in hours because it would not significantly disrupt the = operations=20 of the business. The effect of the reasonable accommodation would be = to alter=20 when the group worked together and when they performed their = individual=20 assignments.

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

    Providing leave to an employee who is unable to provide a fixed = date of=20 return is a form of reasonable accommodation. However, if an employer = is able=20 to show that the lack of a fixed return date causes an undue hardship, = then it=20 can deny the leave. In certain circumstances, undue hardship will = derive from=20 the disruption to the operations of the entity that occurs because the = employer can neither plan for the employee's return nor permanently = fill the=20 position. If an employee cannot provide a fixed date of return, and an = employer determines that it can grant such leave at that time without = causing=20 undue hardship, the employer has the right to require, as part of the=20 interactive process, that the employee provide periodic updates on = his/her=20 condition and possible date of return. After receiving these updates,=20 employers may reevaluate whether continued leave constitutes an undue=20 hardship.

    In certain situations, an employee may be able to provide only an=20 approximate date of return.(= 119)=20 Treatment and recuperation do not always permit exact timetables. = Thus, an=20 employer cannot claim undue hardship solely because an employee can = provide=20 only an approximate date of return. In such situations, or in = situations in=20 which a return date must be postponed because of unforeseen medical=20 developments, employees should stay in regular communication with = their=20 employers to inform them of their progress and discuss, if necessary, = the need=20 for continued leave beyond what might have been granted originally.(= 120)

    Example A: An experienced chef at a top = restaurant=20 requests leave for treatment of her disability but cannot provide a = fixed date=20 of return. The restaurant can show that this request constitutes undue = hardship because of the difficulty of replacing, even temporarily, a = chef of=20 this caliber. Moreover, it leaves the employer unable to determine how = long it=20 must hold open the position or to plan for the chef's absence. = Therefore, the=20 restaurant can deny the request for leave as a reasonable = accommodation.

    Example B: An employee requests eight weeks = of leave=20 for surgery for his disability. The employer grants the request. = During=20 surgery, serious complications arise that require a lengthier period = of=20 recuperation than originally anticipated, as well as additional = surgery. The=20 employee contacts the employer after three weeks of leave to ask for = an=20 additional ten to fourteen weeks of leave (i.e., a total of 18 to 22 = weeks of=20 leave). The employer must assess whether granting additional leave = causes an=20 undue hardship.

  45. Does a cost-benefit analysis determine whether a reasonable = accommodation=20 will cause undue hardship?=20

    No. A cost-benefit analysis assesses the cost of a reasonable = accommodation=20 in relation to the perceived benefit to the employer and the employee. = Neither=20 the statute nor the legislative history supports a cost-benefit = analysis to=20 determine whether a specific accommodation causes an undue hardship.(= 121)=20 Whether the cost of a reasonable accommodation imposes an undue = hardship=20 depends on the employer's resources, not on the individual's salary, = position,=20 or status (e.g., full-time versus part-time, salary versus hourly = wage,=20 permanent versus temporary).

  46. Can an employer claim undue hardship solely because a reasonable=20 accommodation would require it to make changes to property owned by = someone=20 else?=20

    No, an employer cannot claim undue hardship solely because a = reasonable=20 accommodation would require it to make changes to property owned by = someone=20 else. In some situations, an employer will have the right under a = lease or=20 other contractual relationship with the property owner to make the = type of=20 changes that are needed. If this is the case, the employer should make = the=20 changes, assuming no other factors exist that would make the changes = too=20 difficult or costly. If the contractual relationship between the = employer and=20 property owner requires the owner's consent to the kinds of changes = that are=20 required, or prohibits them from being made, then the employer must = make good=20 faith efforts either to obtain the owner's permission or to negotiate = an=20 exception to the terms of the contract. If the owner refuses to allow = the=20 employer to make the modifications, the employer may claim undue = hardship.=20 Even in this situation, however, the employer must still provide = another=20 reasonable accommodation, if one exists, that would not cause undue=20 hardship.

    Example A: X Corp., a travel agency, leases = space in a=20 building owned by Z Co. One of X Corp.'s employees becomes disabled = and needs=20 to use a wheelchair. The employee requests as a reasonable = accommodation that=20 several room dividers be moved to make his work space easily = accessible. X=20 Corp.'s lease specifically allows it to make these kinds of physical = changes,=20 and they are otherwise easy and inexpensive to make. The fact that X = Corp.=20 does not own the property does not create an undue hardship and = therefore it=20 must make the requested accommodation.

    Example B: Same as Example A, except that X = Corp.'s=20 lease requires it to seek Z Co.'s permission before making any = physical=20 changes that would involve reconfiguring office space. X Corp. = requests that Z=20 Co. allow it to make the changes, but Z Co. denies the request. X = Corp. can=20 claim that making the physical changes would constitute an undue = hardship.=20 However, it must provide any other type of reasonable accommodation = that would=20 not involve making physical changes to the facility, such as finding a = different location within the office that would be accessible to the=20 employee.

    An employer should remember its obligation to make reasonable = accommodation=20 when it is negotiating contracts with property owners.(= 122)=20 Similarly, a property owner should carefully assess a request from an = employer=20 to make physical changes that are needed as a reasonable accommodation = because=20 failure to permit the modification might constitute "interference" = with the=20 rights of an employee with a disability.(= 123)=20 In addition, other ADA provisions may require the property owner to = make the=20 modifications.(= 124)

BURDENS OF PROOF

In US Airways, Inc. v. Barnett, 535 U.S., 122 S. Ct. 1516 (2002), the = Supreme=20 Court laid out the burdens of proof for an individual with a disability=20 (plaintiff) and an employer (defendant) in an ADA lawsuit alleging = failure to=20 provide reasonable accommodation. The "plaintiff/employee (to defeat a=20 defendant/employer's motion for summary judgment) need only show that an = 'accommodation' seems reasonable on its face, i.e., ordinarily or in the = run of=20 cases."(= 125)=20 Once the plaintiff has shown that the accommodation s/he needs is = "reasonable,"=20 the burden shifts to the defendant/employer to provide case-specific = evidence=20 proving that reasonable accommodation would cause an undue hardship in = the=20 particular circumstances.(= 126)

The Supreme Court's burden-shifting framework does not affect the = interactive=20 process triggered by an individual's request for accommodation.(= 127)=20 An employer should still engage in this informal dialogue to obtain = relevant=20 information needed to make an informed decision.

INSTRUCTIONS FOR = INVESTIGATORS

When assessing whether a Respondent has violated the ADA by denying a = reasonable accommodation to a Charging Party, investigators should = consider the=20 following:

\=20
  • Is the Charging Party "otherwise qualified" (i.e., is the Charging = Party=20 qualified for the job except that, because of disability, s/he needs a = reasonable accommodation to perform the position's essential = functions)?=20
  • Did the Charging Party, or a representative, request a reasonable=20 accommodation (i.e., did the Charging Party let the employer know that = s/he=20 needed an adjustment or change at work for a reason related to a = medical=20 condition)? [see Questions 1-4]=20
    • Did the Respondent request documentation of the Charging Party's = disability and/or functional limitations? If yes, was the = documentation=20 provided? Did the Respondent have a legitimate reason for requesting = documentation? [see Questions 6-8]=20
    • What specific type of reasonable accommodation, if any, did the = Charging=20 Party request?=20
    • Was there a nexus between the reasonable accommodation requested = and the=20 functional limitations resulting from the Charging Party's = disability? [see=20 Question 6]=20
    • Was the need for reasonable accommodation related to the use of=20 medication, side effects from treatment, or symptoms related to a=20 disability? [see Questions 36-38]
  • For what purpose did the Charging Party request a reasonable=20 accommodation:=20
    • for the application process? [see Questions 12-13]=20
    • in connection with aspects of job performance? [see Questions = 16-24,=20 32-33]=20
    • in order to enjoy the benefits and privileges of employment? = [see=20 Questions 14-15]
  • Should the Respondent have initiated the interactive process, or = provided=20 a reasonable accommodation, even if the Charging Party did not ask for = an=20 accommodation? [see Questions 11, 39]=20
  • What did the Respondent do in response to the Charging Party's = request for=20 reasonable accommodation (i.e., did the Respondent engage in an = interactive=20 process with the Charging Party and if so, describe both the = Respondent's and=20 the Charging Party's actions/statements during this process)? [see = Questions=20 5-11]=20
  • If the Charging Party asked the Respondent for a particular = reasonable=20 accommodation, and the Respondent provided a different accommodation, = why did=20 the Respondent provide a different reasonable accommodation than the = one=20 requested by the Charging Party? Why does the Respondent believe that = the=20 reasonable accommodation it provided was effective in eliminating the=20 workplace barrier at issue, thus providing the Charging Party with an = equal=20 employment opportunity? Why does the Charging Party believe that the=20 reasonable accommodation provided by the Respondent was ineffective? = [see=20 Question 9]=20
  • What type of accommodation could the Respondent have provided that = would=20 have been "reasonable" and effective in eliminating the workplace = barrier at=20 issue, thus providing the Charging Party with an equal employment = opportunity?=20
  • Does the charge involve allegations concerning reasonable = accommodation=20 and violations of any conduct rules? [see Questions 34-35]=20
  • If the Charging Party alleges that the Respondent failed to = provide a=20 reassignment as a reasonable accommodation [see generally Questions = 25-30 and=20 accompanying text]:=20
    • did the Respondent and the Charging Party first discuss other = forms of=20 reasonable accommodation that would enable the Charging Party to = remain in=20 his/her current position before discussing reassignment?=20
    • did the Respondent have any vacant positions? [see Question 27]=20
    • did the Respondent notify the Charging Party about possible = vacant=20 positions? [see Question 28]=20
    • was the Charging Party qualified for a vacant position?=20
    • if there was more than one vacant position, did the Respondent = place the=20 Charging Party in the one that was most closely equivalent to the = Charging=20 Party's original position?=20
    • if the reassignment would conflict with a seniority system, are = there=20 "special circumstances" that would make it "reasonable" to reassign = the=20 Charging Party? [see Question 31]
  • If the Respondent is claiming undue hardship [see generally = Questions=20 42-46 and accompanying text]:=20
    • what evidence has the Respondent produced showing that providing = a=20 specific reasonable accommodation would entail significant = difficulty or=20 expense?=20
    • if a modified schedule or leave is the reasonable accommodation, = is=20 undue hardship based on the impact on the ability of other employees = to do=20 their jobs? [see Question 42]=20
    • if leave is the reasonable accommodation, is undue hardship = based on the=20 amount of leave requested? [see Question 43]=20
    • if there are "special circumstances" that would make it = "reasonable" to=20 reassign the Charging Party, despite the apparent conflict with a = seniority=20 system, would it nonetheless be an undue hardship to make the = reassignment?=20 [see Question 31]=20
    • is undue hardship based on the fact that providing the = reasonable=20 accommodation requires changes to property owned by an entity other = than the=20 Respondent? [see Question 46]=20
    • if the Respondent claims that a particular reasonable = accommodation=20 would result in undue hardship, is there another reasonable = accommodation=20 that Respondent could have provided that would not have resulted in = undue=20 hardship?
  • Based on the evidence obtained in answers to the questions above, = is the=20 Charging Party a qualified individual with a disability (i.e., can the = Charging Party perform the essential functions of the position with or = without=20 reasonable accommodation)?

APPENDIX
RESOURCES FOR LOCATING = REASONABLE=20 ACCOMMODATIONS

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

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

The EEOC also has discussed issues involving reasonable accommodation = in the=20 following 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 (BNA) 405:7391, = 7398-7401 (1996); (3) Enforcement Guidance: The Americans with = Disabilities Act=20 and Psychiatric Disabilities at 19-28, 8 FEP Manual (BNA) 405:7461, = 7470-76=20 (1997); and (4) Fact Sheet on the Family and Medical Leave Act, the = Americans=20 with Disabilities Act, and Title VII of the Civil Rights Act of 1964 at = 6-9, 8=20 FEP Manual (BNA) 405:7371, 7374-76 (1996).

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

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

U.S. Department of Labor
(To obtain information on the Family and = Medical=20 Leave Act)
To request written materials:
1-800-959-3652=20 (Voice)
1-800-326-2577 (TT)
To ask questions: (202) 219-8412 = (Voice)

Internal Revenue Service
(For information on tax credits and = deductions=20 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 provide information, free-of-charge, about many = types of=20 reasonable accommodations.

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

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

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

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

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

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:

  • information and referral centers to help determine what devices = may assist=20 a person with a disability (including access to large data bases = containing=20 information on thousands of commercially available assistive = technology=20 products),=20
  • centers where individuals can try out devices and equipment,=20
  • assistance in obtaining funding for and repairing devices, and=20
  • equipment exchange and recycling programs.

INDEX

The index applies to the print version. Since page numbering does = not=20 exist in HTML files, page numbers have been removed.

Applicants and reasonable accommodation

Attendance and reasonable accommodation

Benefits and privileges of employment and reasonable = accommodation

Access to information

Employer-sponsored services

Employer-sponsored social functions

Employer-sponsored training

Burdens of proof

Choosing between two or more reasonable accommodations

Conduct rules

Confidentiality and reasonable accommodation

Disparate treatment (versus reasonable accommodation)

Employees (part-time, full-time, probationary)

Essential functions and reasonable accommodation

Family and Medical Leave Act (FMLA); Relationship with the ADA

Firm choice and reasonable accommodation (See also "Last chance=20 agreements")

Interactive process between employer and individual with a disability = to=20 determine reasonable accommodation

Landlord/Tenant and reasonable accommodation

Last chance agreements and reasonable accommodation (See also "Firm=20 choice")

Marginal functions and reasonable accommodation

Medical treatment and reasonable accommodation

Employer monitoring of medical treatment

Failure to obtain medical treatment

Leave

Side effects of medical treatment and need for reasonable = accommodation

Medication and reasonable accommodation

Employer monitoring of medication

Failure to use medication

Side effects of medication and need for reasonable accommodation

Personal use items and reasonable accommodation

Production standards and reasonable accommodation

Public accommodation and employer; who provides reasonable = accommodation

"Reasonable accommodation" (definition of)

Reasonable accommodation (effectiveness of)

Reasonable accommodation (how many must employer provide)

Reasonable accommodation (types of)

Access to equipment and computer technology

Changing tests and training materials

Job restructuring

Leave

Alternatives to leave

Approximate versus fixed date of return

Family and Medical Leave Act (FMLA)

Holding open an employee's position

"No-fault" leave policies

Penalizing employees who take leave

Marginal functions (modifying how they are performed; elimination or=20 substitution of)

Modified or part-time schedule

Family and Medical Leave Act (FMLA)

Modifying method of performing job function

Modifying workplace policies

Readers

Reassignment

Employee must be qualified for vacant position

Equivalent position

Interactive process between employer and employee

Relationship between reassignment and general transfer policies

Salary for new position

Seniority systems and reassignment

Vacant position

When must reassignment be offered

Who is entitled to reassignment

Sign language interpreters

Supervisory methods (changing)

Working at home

Reasonable accommodation (who is entitled to receive)

Rehabilitation Act of 1973; Relationship with the ADA

Relationship and association with a person with a disability

Requests for reasonable accommodation

Choosing between two or more reasonable accommodations

Documentation on the need for reasonable accommodation

How to request reasonable accommodation

Interactive process between employer and individual with a = disability

Timing of employer's response to a request for reasonable = accommodation

When should individual with disability request reasonable = accommodation

Who may request reasonable accommodation

Right of individual with a disability to refuse reasonable = accommodation

Role of health care providers in reasonable accommodation process

Seniority systems and reassignment

State or local antidiscrimination laws; Relationship with the ADA

Supervisors and reasonable accommodation

Undue hardship

Cost

Cost-benefit analysis

Definition of

Disruption to operations

Factors to assess

Landlord/Tenant

Leave

Work environment and reasonable accommodation

Footnotes

1. 42 U.S.C. =A7=A7 12101-12117, 12201-12213 = (1994)=20 (codified as amended).

The analysis in this guidance applies to federal sector complaints of = non-affirmative action employment discrimination arising under section = 501 of=20 the Rehabilitation Act of 1973. 29 U.S.C. =A7 791(g) (1994). It also = applies to=20 complaints of non-affirmative action employment discrimination arising = under=20 section 503 and employment discrimination under section 504 of the=20 Rehabilitation Act. 29 U.S.C. =A7=A7 793(d), 794(d) (1994).

The ADA's requirements regarding reasonable accommodation and undue = hardship=20 supercede any state or local disability antidiscrimination laws to the = extent=20 that they offer less protection than the ADA. See 29 C.F.R. =A7 = 1630.1(c)(2)=20 (1997).

2. In addition to employers, the ADA requires = employment=20 agencies, labor organizations, and joint labor-management committees to = provide=20 reasonable accommodations. See 42 U.S.C. =A7 12112(a), (b)(5)(A) = (1994).

3. 29 C.F.R. pt. 1630 app. =A7 1630.2(o) = (1997).

4. 29 C.F.R. =A7 1630.2(o)(1)(i-iii) (1997) = (emphasis added).=20 The notices that employers and labor unions must post informing = applicants,=20 employees, and members of labor organizations of their ADA rights must = include a=20 description of the reasonable accommodation requirement. These notices, = which=20 must be in an accessible format, are available from the EEOC. See the=20 Appendix.

5. All examples used in this document assume that = the=20 applicant or employee has an ADA "disability."

Individuals with a relationship or association with a person with a=20 disability are not entitled to receive reasonable accommodations. See = Den Hartog=20 v. Wasatch Academy, 129 F.3d 1076, 1084, 7 AD Cas. (BNA) 764, 772 (10th = Cir.=20 1997).

6. See 29 C.F.R. pt. 1630 app. =A7 1630.9 (1997); = see also=20 H.R. Rep. No. 101-485, pt. 3, at 39 (1990) [hereinafter House Judiciary = Report];=20 H.R. Rep. No. 101-485, pt. 2, at 65 (1990) [hereinafter House Education = and=20 Labor Report]; S. Rep. No. 101-116, at 34 (1989)[hereinafter Senate = Report].

For more information concerning requests for a reasonable = accommodation, see=20 Questions 1-4, infra. For a discussion of the limited circumstance under = which=20 an employer would be required to ask an individual with a disability = whether=20 s/he needed a reasonable accommodation, see Question 40, infra.

7. 42 U.S.C. =A7 12111(9) (1994); 29 C.F.R. =A7=20 1630.2(o)(2)(i-ii) (1997).

8. US Airways, Inc. v. Barnett, 535 U.S., 122 S. = Ct. 1516,=20 1523 (2002).

9. Id.

Some courts have said that in determining whether an accommodation is = "reasonable," one must look at the costs of the accommodation in = relation to its=20 benefits. See, e.g., Monette v. Electronic Data Sys. Corp., 90 F.3d = 1173, 1184=20 n.10, 5 AD Cas. (BNA) 1326, 1335 n.10 (6th Cir. 1996); Vande Zande v. = Wisconsin=20 Dept. of Admin., 44 F.3d 538, 543, 3 AD Cas. (BNA) 1636, 1638-39 (7th = Cir.=20 1995). This "cost/benefit" analysis has no foundation in the statute,=20 regulations, or legislative history of the ADA. See 42 U.S.C. =A7 = 12111(9), (10)=20 (1994); 29 C.F.R. =A7 1630.2(o), (p) (1997); see also Senate Report, = supra note 6,=20 at 31-35; House Education and Labor Report, supra note 6, at 57-58.

10. See US Airways, Inc. v. Barnett, 535 U.S., = 122 S. Ct.=20 1516, 1522 (2002). The Court explained that "in ordinary English the = word=20 'reasonable' does not mean 'effective.' It is the word 'accommodation,' = not the=20 word 'reasonable,' that conveys the need for effectiveness." Id.

11. A TTY is a device that permits individuals = with hearing=20 and speech impairments to communicate by telephone.

12. In US Airways, Inc. v. Barnett, the Supreme = Court held=20 that it was unreasonable, absent "special circumstances," for an = employer to=20 provide a reassignment that conflicts with the terms of a seniority = system. 535=20 U.S., 122 S. Ct. 1516, 1524-25 (2002). For a further discussion of this = issue,=20 see Question 31, infra.

13. "[W]ith or without reasonable accommodation" = includes,=20 if necessary, reassignment to a vacant position. Thus, if an employee is = no=20 longer qualified because of a disability to continue in his/her present=20 position, an employer must reassign him/her as a reasonable = accommodation. See=20 the section on "Reassignment," infra pp. 37-38 and n.77.

14. 29 C.F.R. pt. 1630 app. =A7 1630.2(n) = (1997).

15. 29 C.F.R. pt. 1630 app. =A7 1630.9 = (1997).

16. See 42 U.S.C. =A7 12112 (b)(5)(A) (1994) (it = is a form of=20 discrimination to fail to provide a reasonable accommodation "unless = such=20 covered entity can demonstrate that the accommodation would impose an = undue=20 hardship . . ."); see also 42 U.S.C.=20

=A7 12111(10) (1994) (defining "undue hardship" based on factors = assessing cost=20 and difficulty).

The legislative history discusses financial, administrative, and = operational=20 limitations on providing reasonable accommodations only in the context = of=20 defining "undue hardship." Compare Senate Report, supra note 6, at 31-34 = with=20 35-36; House Education and Labor Report, supra note 6, at 57-58 with = 67-70.

17. See 42 U.S.C. =A7 12111(10) (1994); 29 = C.F.R. =A7=20 1630.2(p) (1997); 29 C.F.R. pt. 1630 app. =A7 1630.2(p) (1997).

18. See 29 C.F.R. pt. 1630 app. =A7 1630.15(d) = (1997). See=20 also Eckles v. Consolidated Rail Corp., 94 F.3d 1041, 1048-49, 5 AD Cas. = (BNA)=20 1367, 1372-73 (7th Cir. 1996); Bryant v. Better Business Bureau of = Maryland, 923=20 F. Supp. 720, 740, 5 AD Cas. (BNA) 625, 638 (D. Md. 1996).

19. See, e.g., Schmidt v. Safeway Inc., 864 F. = Supp. 991,=20 997, 3 AD Cas. (BNA) 1141, 1146-47 (D. Or. 1994) ("statute does not = require the=20 plaintiff to speak any magic words. . . The employee need not mention = the ADA or=20 even the term 'accommodation.'"). See also Hendricks-Robinson v. Excel = Corp.,=20 154 F.3d 685, 694, 8 AD Cas. (BNA) 875, 882 (7th Cir. 1998) ("[a] = request as=20 straightforward as asking for continued employment is a sufficient = request for=20 accommodation"); Bultemeyer v. Ft. Wayne Community Schs., 100 F.3d 1281, = 1285, 6=20 AD Cas. (BNA) 67, 71 (7th Cir. 1996) (an employee with a known = psychiatric=20 disability requested reasonable accommodation by stating that he could = not do a=20 particular job and by submitting a note from his psychiatrist); McGinnis = v.=20 Wonder Chemical Co., 5 AD Cas. (BNA) 219 (E.D. Pa. 1995) (employer on = notice=20 that accommodation had been requested because: (1) employee told = supervisor that=20 his pain prevented him from working and (2) employee had requested leave = under=20 the Family and Medical Leave Act).

Nothing in the ADA requires an individual to use legal terms or to = anticipate=20 all of the possible information an employer may need in order to provide = a=20 reasonable accommodation. The ADA avoids a formulistic approach in favor = of an=20 interactive discussion between the employer and the individual with a=20 disability, after the individual has requested a change due to a medical = condition. Nevertheless, some courts have required that individuals = initially=20 provide detailed information in order to trigger the employer's duty to=20 investigate whether reasonable accommodation is required. See, e.g., = Taylor v.=20 Principal Fin. Group, Inc., 93 F.3d 155, 165, 5 AD Cas. (BNA) 1653, 1660 = (5th=20 Cir. 1996); Miller v. Nat'l Cas. Co., 61 F.3d 627, 629-30, 4 AD Cas. = (BNA) 1089,=20 1090-91 (8th Cir. 1995).

20. See Questions 5 - 7, infra, for a further = discussion on=20 when an employer may request reasonable documentation about a person's=20 "disability" and the need for reasonable accommodation.

21. Cf. Beck v. Univ. of Wis. Bd. of Regents, 75 = F.3d 1130,=20 5 AD Cas. (BNA) 304 (7th Cir. 1996); Schmidt v. Safeway Inc., 864 F. = Supp. 991,=20 997, 3 AD Cas. (BNA) 1141, 1146 (D. Or. 1994). But see Miller v. Nat'l = Casualty=20 Co., 61 F.3d 627, 630, 4 AD Cas. (BNA) 1089, 1091 (8th Cir. 1995) = (employer had=20 no duty to investigate reasonable accommodation despite the fact that = the=20 employee's sister notified the employer that the employee "was mentally = falling=20 apart and the family was trying to get her into the hospital").

The employer should be receptive to any relevant information or = requests it=20 receives from a third party acting on the individual's behalf because = the=20 reasonable accommodation process presumes open communication in order to = help=20 the employer make an informed decision. See 29 C.F.R. =A7=A7 1630.2(o), = 1630.9=20 (1997); 29 C.F.R. pt. 1630 app. =A7=A7 1630.2(o), 1630.9 (1997).

22. Although individuals with disabilities are = not required=20 to keep records, they may find it useful to document requests for = reasonable=20 accommodation in the event there is a dispute about whether or when they = requested accommodation. Employers, however, must keep all employment = records,=20 including records of requests for reasonable accommodation, for one year = from=20 the making of the record or the personnel action involved, whichever = occurs=20 later. If a charge is filed, records must be preserved until the charge = is=20 resolved. 29 C.F.R. =A7 1602.14 (1997).

23. Cf. Masterson v. Yellow Freight Sys., Inc., = Nos.=20 98-6126, 98-6025, 1998 WL 856143 (10th Cir. Dec. 11, 1998) (fact that an = employee with a disability does not need a reasonable accommodation all = the time=20 does not relieve employer from providing an accommodation for the period = when he=20 does need one).

24. See 29 C.F.R. =A7 1630.2(o)(3) (1997); 29 = C.F.R. pt. 1630=20 app. =A7=A7 1630.2(o), 1630.9 (1997); see also Haschmann v. Time Warner=20 Entertainment Co., 151 F.3d 591, 601, 8 AD Cas. (BNA) 692, 700 (7th Cir. = 1998);=20 Dalton v. Subaru-Isuzu, 141 F.3d 667, 677, 7 AD Cas. (BNA) 1872, 1880-81 = (7th=20 Cir. 1998). The appendix to the regulations at =A7 1630.9 provides a = detailed=20 discussion of the reasonable accommodation process.

Engaging in an interactive process helps employers to discover and = provide=20 reasonable accommodation. Moreover, in situations where an employer = fails to=20 provide a reasonable accommodation (and undue hardship would not be a = valid=20 defense), evidence that the employer engaged in an interactive process = can=20 demonstrate a "good faith" effort which can protect an employer from = having to=20 pay punitive and certain compensatory damages. See 42 U.S.C. =A7 = 1981a(a)(3)=20 (1994).

25. The burden-shifting framework outlined by the = Supreme=20 Court in US Airways, Inc. v. Barnett, 535 U.S., 122 S. Ct. 1516, 1523 = (2002),=20 does not affect the interactive process between an employer and an = individual=20 seeking reasonable accommodation. See pages 61-62, infra, for a further=20 discussion.

26. See 29 C.F.R. pt. 1630 app. =A7 1630.9 = (1997). The=20 Appendix to this Guidance provides a list of resources to identify = possible=20 accommodations.

27. 29 C.F.R. pt. 1630 app. =A7 1630.9 (1997); = see also EEOC=20 Enforcement Guidance: Preemployment Disability-Related Questions and = Medical=20 Examinations at 6, 8 FEP Manual (BNA) 405:7191, 7193 (1995) [hereinafter = Preemployment Questions and Medical Examinations]; EEOC Enforcement = Guidance:=20 The Americans with Disabilities Act and Psychiatric Disabilities at = 22-23, 8 FEP=20 Manual (BNA) 405:7461, 7472-73 (1997) [hereinafter ADA and Psychiatric=20 Disabilities]. Although the latter Enforcement Guidance focuses on = psychiatric=20 disabilities, the legal standard under which an employer may request=20 documentation applies to disabilities generally.

When an employee seeks leave as a reasonable accommodation, an = employer's=20 request for documentation about disability and the need for leave may = overlap=20 with the certification requirements of the Family and Medical Leave Act = (FMLA),=20 29 C.F.R. =A7=A7 825.305-.306, 825.310-.311 (1997).

28. Since a doctor cannot disclose information = about a=20 patient without his/her permission, an employer must obtain a release = from the=20 individual that will permit his/her doctor to answer questions. The = release=20 should be clear as to what information will be requested. Employers must = maintain the confidentiality of all medical information collected during = this=20 process, regardless of where the information comes from. See Question 42 = and=20 note 111, infra.

29. See Question 9, infra, for information on = choosing=20 between two or more effective accommodations.

30. This employee also might be covered under the = Family=20 and Medical Leave Act, and if so, the employer would need to comply with = the=20 requirements of that statute.

31. See Templeton v. Neodata Servs., Inc., No. = 98-1106,=20 1998 WL 852516 (10th Cir. Dec. 10, 1998); Beck v. Univ. of Wis. Bd. of = Regents,=20 75 F.3d 1130, 1134, 5 AD Cas. (BNA) 304, 307 (7th Cir. 1996); McAlpin v. = National Semiconductor Corp., 921 F. Supp. 1518, 1525, 5 AD Cas. (BNA) = 1047,=20 1052 (N.D. Tex. 1996).

32. See Hendricks-Robinson v. Excel Corp., 154 = F.3d 685,=20 700, 8 AD Cas. (BNA) 875, 887 (7th Cir. 1998).

33. If an individual provides sufficient = documentation to=20 show the existence of an ADA disability and the need for reasonable=20 accommodation, continued efforts by the employer to require that the = individual=20 see the employer's health professional could be considered = retaliation.

34. Employers also may consider alternatives like = having=20 their health professional consult with the individual's health = professional,=20 with the employee's consent.

35. See 29 C.F.R. pt. 1630 app. =A7 1630.9 = (1997); see=20 also Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, = 1285-86, 6=20 AD Cas. (BNA) 1834, 1839 (11th Cir. 1997); Hankins v. The Gap, Inc., 84 = F.3d=20 797, 800, 5 AD Cas. (BNA) 924, 926-27 (6th Cir. 1996); Gile v. United = Airlines,=20 Inc., 95 F.3d 492, 499, 5 AD Cas. (BNA) 1466, 1471 (7th Cir. 1996).

36. 29 C.F.R. pt. 1630 app. =A71630.9 (1997).

37. See Dalton v. Subaru-Isuzu Automotive, Inc., = 141 F.3d=20 667, 677, 7 AD Cas. (BNA) 1872, 1880 (7th Cir. 1998).

38. In determining whether there has been an = unnecessary=20 delay in responding to a request for reasonable accommodation, relevant = factors=20 would include: (1) the reason(s) for the delay, (2) the length of the = delay, (3)=20 how much the individual with a disability and the employer each = contributed to=20 the delay, (4) what the employer was doing during the delay, and (5) = whether the=20 required accommodation was simple or complex to provide.

39. See 29 C.F.R. pt. 1630 app. =A7 1630.9 = (1997); see also=20 Hankins v. The Gap, Inc., 84 F.3d 797, 801, 5 AD Cas. (BNA) 924, 927 = (6th Cir.=20 1996).

40. 42 U.S.C. =A7 12112(d)(2)(A) (1994); 29 = C.F.R. =A7=20 1630.13(a) (1997). For a thorough discussion of these requirements, see=20 Preemployment Questions and Medical Examinations, supra note 27, at 6-8, = 8 FEP=20 Manual (BNA) 405:7193-94.

41. 42 U.S.C. =A7 12112(d)(3) (1994); 29 C.F.R. = =A7 1630.14(b)=20 (1997); see also Preemployment Questions and Medical Examinations, supra = note=20 27, at 20, 8 FEP Manual (BNA) 405:7201.

42. See Question 12, supra, for the circumstances = under=20 which an employer may ask an applicant whether s/he will need reasonable = accommodation to perform specific job functions.

43. The discussions and examples in this section = assume=20 that there is only one effective accommodation and that the reasonable=20 accommodation will not cause undue hardship.

44. See 29 C.F.R. pt. 1630 app. =A7 1630.9 = (1997).

45. 42 U.S.C. =A7=A7 12181(7), 12182(1)(A), = (2)(A)(iii)=20 (1994).

46. The discussions and examples in this section = assume=20 that there is only one effective accommodation and that the reasonable=20 accommodation will not cause undue hardship.

The types of reasonable accommodations discussed in this section are = not=20 exhaustive. For example, employees with disabilities may request = reasonable=20 accommodations to modify the work environment, such as changes to the=20 ventilation system or relocation of a work space.

See the Appendix for additional resources to identify other possible=20 reasonable accommodations.

47. 42 U.S.C. =A7 12111(9)(B) (1994); 29 = C.F.R. pt. 1630=20 app. =A7=A7 1630.2(o), 1630.9 (1997); see Benson v. Northwest = Airlines, Inc.,=20 62 F.3d 1108, 1112-13, 4 AD Cas. (BNA) 1234, 1236-37 (8th Cir. = 1995).

48. 29 C.F.R. pt. 1630 app. =A7 1630.2(o) (1997). = See Cehrs=20 v. Northeast Ohio Alzheimer's, 155 F.3d 775, 782, 8 AD Cas. (BNA) 825, = 830-31=20 (6th Cir. 1998).

An employee who needs leave, or a part-time or modified schedule, as = a=20 reasonable accommodation also may be entitled to leave under the Family = and=20 Medical Leave Act. See Questions 21 and 23, infra.

49. See A Technical Assistance Manual on the = Employment=20 Provisions (Title I) of the Americans with Disabilities Act, at 3.10(4), = 8 FEP=20 Manual (BNA) 405:6981, 7011 (1992) [hereinafter TAM].

50. 42 U.S.C. =A7 12111(9)(B) (1994); 29 C.F.R. = =A7=20 1630.2(o)(2)(ii) (1997). See US Airways, Inc. v. Barnett, 535 U.S., 122 = S. Ct.=20 1516, 1521 (2002). See also Question 24, infra. While undue hardship = cannot be=20 based solely on the existence of a no-fault leave policy, the employer = may be=20 able to show undue hardship based on an individualized assessment = showing the=20 disruption to the employer's operations if additional leave is granted = beyond=20 the period allowed by the policy. In determining whether undue hardship = exists,=20 the employer should consider how much additional leave is needed (e.g., = two=20 weeks, six months, one year?).

51. See Schmidt v. Safeway Inc., 864 F. Supp. = 991, 996-97,=20 3 AD Cas. (BNA) 1141, 1145-46 (D. Or. 1994); Corbett v. National = Products Co., 4=20 AD Cas. (BNA) 987, 990 (E.D. Pa. 1995).

52. See EEOC Enforcement Guidance: Workers' = Compensation=20 and the ADA at 16, 8 FEP Manual (BNA) 405:7391, 7399 (1996) [hereinafter = Workers' Compensation and the ADA]. See also pp. 37-45, infra, for = information=20 on reassignment as a reasonable accommodation.

53. Cf. Kiel v. Select Artificials, 142 F.3d = 1077, 1080, 8=20 AD Cas. (BNA) 43, 44 (8th Cir. 1998).

54. See Criado v. IBM, 145 F.3d 437, 444-45, 8 AD = Cas.=20 (BNA) 336, 341 (1st Cir. 1998).

55. But see Matthews v. Commonwealth Edison Co., = 128 F.3d=20 1194, 1197-98, 7 AD Cas. (BNA) 1651, 1653-54 (7th Cir. 1997) (an = employee who,=20 because of a heart attack, missed several months of work and returned on = a=20 part-time basis until health permitted him to work full-time, could be=20 terminated during a RIF based on his lower productivity). In reaching = this=20 decision, the Seventh Circuit failed to consider that the employee = needed leave=20 and a modified schedule as reasonable accommodations for his disability, = and=20 that the accommodations became meaningless when he was penalized for = using=20 them.

56. If an employee, however, qualifies for leave = under the=20 Family and Medical Leave Act, an employer may not require him/her to = remain on=20 the job with an adjustment in lieu of taking leave. See 29 C.F.R. =A7=20 825.702(d)(1) (1997).

57. See Question 9, supra.

58. For more detailed information on issues = raised by the=20 interplay between these statutes, refer to the FMLA/ADA Fact Sheet = listed in the=20 Appendix.

59. Employers should remember that many employees = eligible=20 for FMLA leave will not be entitled to leave as a reasonable = accommodation under=20 the ADA, either because they do not meet the ADA's definition of = disability or,=20 if they do have an ADA disability, the need for leave is unrelated to = that=20 disability.

60. 29 C.F.R. =A7=A7 825.214(a), 825.215 = (1997).

61. For further information on the undue hardship = factors,=20 see infra pp. 55-56.

62. 29 C.F.R. =A7 825.702(c)(4) (1997).

63. 42 U.S.C. =A712111 (9) (B) (1994); see Ralph = v. Lucent=20 Technologies, Inc., 135 F.3d 166, 172, 7 AD Cas. (BNA) 1345, 1349 (1st = Cir.=20 1998) (a modified schedule is a form of reasonable accommodation).

64. See US Airways, Inc. v. Barnett, 535 U.S., = 122 S. Ct.=20 1516, 1521 (2002).

65. Certain courts have characterized attendance = as an=20 "essential function." See, e.g., Carr v. Reno, 23 F.3d 525, 530, 3 AD = Cas. (BNA)=20 434, 438 (D.C. Cir. 1994); Jackson v. Department of Veterans Admin., 22 = F.3d=20 277, 278-79, 3 AD Cas. (BNA) 483, 484 (11th Cir. 1994). Attendance, = however, is=20 not an essential function as defined by the ADA because it is not one of = "the=20 fundamental job duties of the employment position." 29 C.F.R. =A7 = 1630.2(n)(1)=20 (1997) (emphasis added). As the regulations make clear, essential = functions are=20 duties to be performed. 29 C.F.R. =A7 1630.2(n)(2) (1997). See Haschmann = v. Time=20 Warner Entertainment Co., 151 F.3d 591, 602, 8 AD Cas. (BNA) 692, 701 = (7th Cir.=20 1998); Cehrs v. Northeast Ohio Alzheimer's, 155 F.3d 775, 782-83, 8 AD = Cas.=20 (BNA) 825, 830-31 (6th Cir. 1998).

On the other hand, attendance is relevant to job performance and = employers=20 need not grant all requests for a modified schedule. To the contrary, if = the=20 time during which an essential function is performed is integral to its=20 successful completion, then an employer may deny a request to modify an=20 employee's schedule as an undue hardship.

66. Employers covered under the Family and = Medical Leave=20 Act (FMLA) should determine whether any denial of leave or a modified = schedule=20 is also permissible under that law. See 29 C.F.R. =A7 825.203 = (1997).

67. For more detailed information on issues = raised by the=20 interplay between these statutes, refer to the FMLA/ADA Fact Sheet = listed in the=20 Appendix.

68. See infra pp. 37-45 for more information on=20 reassignment, including under what circumstances an employer and = employee may=20 voluntarily agree that a transfer is preferable to having the employee = remain in=20 his/her current position.

69. 29 C.F.R. =A7 825.204 (1997); see also = special rules=20 governing intermittent leave for instructional employees at =A7=A7 = 825.601,=20 825.602.

70. 29 C.F.R. =A7=A7 825.209, 825.210 (1997).

71. 42 U.S.C. =A7 12111(9)(B) (1994); 29 C.F.R. = =A7=20 1630.2(o)(2)(ii) (1997). See US Airways, Inc. v. Barnett, 535 U.S., 122 = S. Ct.=20 1516, 1521 (2002).

72. See Dutton v. Johnson County Bd. of Comm'rs, = 868 F.=20 Supp. 1260, 1264-65, 3 AD Cas. (BNA) 1614, 1618 (D. Kan. 1994).

73. See 29 C.F.R. pt. 1630 app. =A7 1630.15(b), = (c) (1997).=20 See also Question 17, supra.

74. But cf. Miller v. Nat'l Casualty Co., 61 F.3d = 627,=20 629-30, 4 AD Cas. (BNA) 1089, 1090 (8th Cir. 1995) (court refuses to = find that=20 employee's sister had requested reasonable accommodation despite the = fact that=20 the sister informed the employer that the employee was having a medical = crisis=20 necessitating emergency hospitalization).

75. For information on how reassignment may apply = to=20 employers who provide light duty positions, see Workers' Compensation = and the=20 ADA, supra note 52, at 20-23, 8 FEP Manual (BNA) 405:7401-03.

76. 42 U.S.C. =A7 12111(9)(B) (1994); 29 = C.F.R.=20 =A7 1630.2(o)(2)(ii) (1997). See Benson v. Northwest Airlines, = Inc., 62 F.3d=20 1108, 1114, 4 AD Cas. (BNA) 1234, 1238 (8th Cir. 1995); Monette v. = Electronic=20 Data Sys. Corp., 90 F.3d 1173, 1187, 5 AD Cas. (BNA) 1326, 1338 (6th = Cir. 1996);=20 Gile v. United Airlines, Inc., 95 F.3d 492, 498, 5 AD Cas. (BNA) 1466, = 1471 (7th=20 Cir. 1996).

Reassignment is available only to employees, not to applicants. 29 = C.F.R. pt.=20 1630 app. =A7 1630.2(o) (1997).

77. 29 C.F.R. pt. 1630 app. =A7 1630.2(o) (1997); = see Haysman=20 v. Food Lion, Inc., 893 F. Supp. 1092, 1104, 4 AD Cas. (BNA) 1297, 1305 = (S.D.=20 Ga. 1995).

Some courts have found that an employee who is unable to perform the=20 essential functions of his/her current position is unqualified to = receive a=20 reassignment. See, e.g., Schmidt v. Methodist Hosp. of Indiana, Inc., 89 = F.3d=20 342, 345, 5 AD Cas. (BNA) 1340, 1342 (7th Cir. 1996); Pangalos v. = Prudential=20 Ins. Co. of Am., 5 AD Cas. (BNA) 1825, 1826 (E.D. Pa. 1996). These = decisions,=20 however, nullify Congress' inclusion of reassignment in the ADA. An = employee=20 requires a reassignment only if s/he is unable to continue performing = the=20 essential functions of his/her current position, with or without = reasonable=20 accommodation. Thus, an employer must provide reassignment either when=20 reasonable accommodation in an employee's current job would cause undue = hardship=20 or when it would not be possible. See Aka v. Washington Hosp. Ctr.,156 = F.3d=20 1284, 1300-01, 8 AD Cas. (BNA) 1093, 1107-08 (D.C. Cir. 1998); Dalton v. = Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 678, 7 AD Cas. (BNA) 1872, = 1880=20 (7th Cir. 1998); see also ADA and Psychiatric Disabilities, supra note = 27, at=20 28, 8 FEP Manual (BNA) 405:7476; Workers' Compensation and the ADA, = supra note=20 52, at 17-18, 8 FEP Manual (BNA) 405:7399-7400.

78. 29 C.F.R. =A7 1630.2(m) (1997); 29 C.F.R. pt. = 1630 app.=20 =A7=A7 1630.2(m), 1630.2(o)(1997). See Stone v. Mount Vernon, 118 F.3d = 92, 100-01, 6=20 AD Cas. (BNA) 1685, 1693 (2d Cir. 1997).

79. See Quintana v. Sound Distribution Corp., 6 = AD Cas.=20 (BNA) 842, 846 (S.D.N.Y. 1997).

80. See 29 C.F.R. pt. 1630 app. =A71630.2(o) = (1997); Senate=20 Report, supra note 6, at 31; House Education and Labor Report, supra = note 6, at=20 63.

81. For suggestions on what the employee can do = while=20 waiting for a position to become vacant within a reasonable amount of = time, see=20 note 89, infra.

82. See 29 C.F.R. pt. 1630 app. =A7 1630.2(o) = (1997); see=20 also White v. York Int'l Corp., 45 F.3d 357, 362, 3 AD Cas. (BNA) 1746, = 1750=20 (10th Cir. 1995).

83. See 29 C.F.R. pt. 1630 app. =A7 1630.2(o) = (1997).

84. See US Airways, Inc. v. Barnett, 535 U.S., = 122 S. Ct.=20 1516, 1521, 1524 (2002); see also Aka v. Washington Hosp. Ctr., 156 F.3d = 1284,=20 1304-05, 8 AD Cas. (BNA) 1093, 1110-11 (D.C. Cir. 1998); United States = v.=20 Denver, 943 F. Supp. 1304, 1312, 6 AD Cas. (BNA) 245, 252 (D. Colo. = 1996). See=20 also Question 24, supra.

85. 42 U.S.C. =A7 12111(9)(B) (1994); 29 C.F.R. = =A7=20 1630.2(o)(2)(ii) (1997); see Hendricks-Robinson v. Excel Corp., 154 F.3d = 685,=20 695, 8 AD Cas. (BNA) 875, 883 (7th Cir. 1998); see generally Dalton v.=20 Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 677-78, 7 AD Cas. (BNA) = 1872,=20 1880-81 (7th Cir. 1998).

86. See Gile v. United Airlines, Inc., 95 F.3d = 492, 499, 5=20 AD Cas. (BNA) 1466, 1472 (7th Cir. 1996); see generally United States v. = Denver,=20 943 F. Supp. 1304, 1311-13, 6 AD Cas. (BNA) 245, 251-52 (D. Colo. = 1996).

Some courts have limited the obligation to provide a reassignment to=20 positions within the same department or facility in which the employee = currently=20 works, except when the employer's standard practice is to provide=20 inter-department or inter-facility transfers for all employees. See, = e.g.,=20 Emrick v. Libbey-Owens-Ford Co., 875 F. Supp. 393, 398, 4 AD Cas.(BNA) = 1, 4-5=20 (E.D. Tex. 1995). However, the ADA requires modification of workplace = policies,=20 such as transfer policies, as a form of reasonable accommodation. See = Question=20 24, supra. Therefore, policies limiting transfers cannot be a per se bar = to=20 reassigning someone outside his/her department or facility. \ = Furthermore, the=20 ADA requires employers to provide reasonable accommodations, including=20 reassignment, regardless of whether such accommodations are routinely = granted to=20 non-disabled employees. See Question 26, supra.

87. See Hendricks-Robinson v. Excel Corp., 154 = F.3d 685,=20 695-96, 697-98, 8 AD Cas. (BNA) 875, 883, 884 (7th Cir. 1998) (employer = cannot=20 mislead disabled employees who need reassignment about full range of = vacant=20 positions; nor can it post vacant positions for such a short period of = time that=20 disabled employees on medical leave have no realistic chance to learn = about=20 them); Mengine v. Runyon, 114 F.3d 415, 420, 6 AD Cas. (BNA) 1530, 1534 = (3d Cir.=20 1997) (an employer has a duty to make reasonable efforts to assist an = employee=20 in identifying a vacancy because an employee will not have the ability = or=20 resources to identify a vacant position absent participation by the = employer);=20 Woodman v. Runyon, 132 F.3d 1330, 1344, 7 AD Cas. (BNA) 1189, 1199 (10th = Cir.=20 1997) (federal employers are far better placed than employees to = investigate in=20 good faith the availability of vacant positions).

88. See Dalton v. Subaru-Isuzu Automotive, Inc., = 141 F.3d=20 667, 678, 7 AD Cas. (BNA)1872, 1881 (7th Cir. 1998) (employer must first = identify full range of alternative positions and then determine which = ones=20 employee qualified to perform, with or without reasonable = accommodation);=20 Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 700, 8 AD Cas. (BNA) = 875,=20 886-87 (7th Cir. 1998) (employer's methodology to determine if = reassignment is=20 appropriate does not constitute the "interactive process" contemplated = by the=20 ADA if it is directive rather than interactive); Mengine v. Runyon, 114 = F.3d=20 415, 419-20, 6 AD Cas. (BNA) 1530, 1534 (3d Cir. 1997) (once an employer = has=20 identified possible vacancies, an employee has a duty to identify which = one he=20 is capable of performing).

89. If it will take several weeks to determine = whether an=20 appropriate vacant position exists, the employer and employee should = discuss the=20 employee's status during that period. There are different possibilities=20 depending on the circumstances, but they may include: use of accumulated = paid=20 leave, use of unpaid leave, or a temporary assignment to a light duty = position.=20 Employers also may choose to take actions that go beyond the ADA's = requirements,=20 such as eliminating an essential function of the employee's current = position, to=20 enable an employee to continue working while a reassignment is = sought.

90. 42 U.S.C. =A7 12111(9)(b) (1994); 29 C.F.R. = pt. 1630 app.=20 =A7 1630.2(o) (1997). See Senate Report, supra note 6, at 31 ("If = an=20 employee, because of disability, can no longer perform the essential = functions=20 of the job that she or he has held, a transfer to another vacant job for = which=20 the person is qualified may prevent the employee from being out of work = and the=20 employer from losing a valuable worker."). See Wood v. County of = Alameda, 5 AD=20 Cas. (BNA) 173, 184 (N.D. Cal. 1995) (when employee could no longer = perform job=20 because of disability, she was entitled to reassignment to a vacant = position,=20 not simply an opportunity to "compete"); cf. Aka v. Washington Hosp. = Ctr., 156=20 F.3d 1284, 1304-05, 8 AD Cas. (BNA) 1093, 1110-11 (D.C. Cir. 1998) (the = court,=20 in interpreting a collective bargaining agreement provision authorizing=20 reassignment of disabled employees, states that "[a]n employee who is = allowed to=20 compete for jobs precisely like any other applicant has not been = "reassigned");=20 United States v. Denver, 943 F. Supp. 1304, 1310-11, 6 AD Cas. (BNA) = 245, 250=20 (D. Colo. 1996) (the ADA requires employers to move beyond traditional = analysis=20 and consider reassignment as a method of enabling a disabled worker to = do a=20 job).

Some courts have suggested that reassignment means simply an = opportunity to=20 compete for a vacant position. See, e.g., Daugherty v. City of El Paso, = 56 F.3d=20 695, 700, 4 AD Cas. (BNA) 993, 997 (5th Cir. 1995). Such an = interpretation=20 nullifies the clear statutory language stating that reassignment is a = form of=20 reasonable accommodation. Even without the ADA, an employee with a = disability=20 may have the right to compete for a vacant position.

91. 29 C.F.R. pt. 1630 app. =A7 1630.2(o) = (1997).

92. See US Airways, Inc. v. Barnett, 535 U.S., = 122 S. Ct.=20 1516, 1524-25 (2002).

93. Id.

94. Id. at 1525. In a lawsuit, the = plaintiff/employee bears=20 the burden of proof to show the existence of "special circumstances" = that=20 warrant a jury's finding that a reassignment is "reasonable" despite the = presence of a seniority system. If an employee can show "special = circumstances,"=20 then the burden shifts to the employer to show why the reassignment = would pose=20 an undue hardship. See id.

95. Id.

96. Id. The Supreme Court made clear that these = two were=20 examples of "special circumstances" and that they did not constitute an=20 exhaustive list of examples. Furthermore, Justice Stevens, in a = concurring=20 opinion, raised additional issues that could be relevant to show special = circumstances that would make it reasonable for an employer to make an = exception=20 to its seniority system. See id. at 1526.

97. The discussions and examples in this section = assume=20 that there is only one effective accommodation and that the reasonable=20 accommodation will not cause an undue hardship.

98. See Ralph v. Lucent Technologies, Inc., 135 = F.3d 166,=20 171, 7 AD Cas. (BNA) 1345, 1349 (1st Cir. 1998).

99. For a discussion on ways to modify = supervisory methods,=20 see ADA and Psychiatric Disabilities, supra note 27, at 26-27, 8 FEP = Manual=20 (BNA) 405:7475.

100. See 29 C.F.R. =A7 1630.2(o)(1)(ii), (2)(ii) = (1997)=20 (modifications or adjustments to the manner or circumstances under which = the=20 position held or desired is customarily performed that enable a = qualified=20 individual with a disability to perform the essential functions).

101. Courts have differed regarding whether = "work-at-home"=20 can be a reasonable accommodation. Compare Langon v. Department of = Health and=20 Human Servs., 959 F.2d 1053, 1060, 2 AD Cas. (BNA) 152, 159 (D.C. Cir. = 1992);=20 Anzalone v. Allstate Insurance Co., 5 AD Cas. (BNA) 455, 458 (E.D. La. = 1995);=20 Carr v. Reno, 23 F.3d 525, 530, 3 AD Cas. (BNA) 434, 437-38 (D.D.C. = 1994), with=20 Vande Zande v. Wisconsin Dep't of Admin., 44 F.3d 538, 545, 3 AD Cas. = (BNA)=20 1636, 1640 (7th Cir. 1995). Courts that have rejected working at home as = a=20 reasonable accommodation focus on evidence that personal contact, = interaction,=20 and coordination are needed for a specific position. See, e.g., Whillock = v.=20 Delta Air Lines, 926 F. Supp. 1555, 1564, 5 AD Cas. (BNA) 1027 (N.D. Ga. = 1995),=20 aff'd, 86 F.3d 1171, 7 AD Cas. (BNA) 1267 (11th Cir. 1996); = Misek-Falkoff v. IBM=20 Corp., 854 F. Supp. 215, 227-28, 3 AD Cas. (BNA) 449, 457-58 (S.D.N.Y. = 1994),=20 aff'd, 60 F.3d 811, 6 AD Cas. (BNA) 576 (2d Cir. 1995).

102. See 29 C.F.R. =A7 1630.15(d) (1997).

103. See Siefken v. Arlington Heights, 65 F.3d = 664, 666, 4=20 AD Cas. (BNA) 1441, 1442 (7th Cir. 1995). Therefore, it may be in the = employee's=20 interest to request a reasonable accommodation before performance = suffers or=20 conduct problems occur. For more information on conduct standards, = including=20 when they are job-related and consistent with business necessity, see = ADA and=20 Psychiatric Disabilities, supra note 27, at 29-32, 8 FEP Manual (BNA)=20 405:7476-78.

An employer does not have to offer a "firm choice" or a "last chance=20 agreement" to an employee who performs poorly or who has engaged in = misconduct=20 because of alcoholism. "Firm choice" or "last chance agreements" involve = excusing past performance or conduct problems resulting from alcoholism = in=20 exchange for an employee's receiving substance abuse treatment and = refraining=20 from further use of alcohol. Violation of such an agreement generally = warrants=20 termination. Since the ADA does not require employers to excuse poor = performance=20 or violation of conduct standards that are job-related and consistent = with=20 business necessity, an employer has no obligation to provide "firm = choice" or a=20 "last chance agreement" as a reasonable accommodation. See Johnson v. = Babbitt,=20 EEOC Docket No. 03940100 (March 28, 1996). However, an employer may = choose to=20 offer an employee a "firm choice" or a "last chance agreement."

104. See ADA and Psychiatric Disabilities, supra = note 27,=20 at 31-32, 8 FEP Manual (BNA) 405:7477-78.

105. See Robertson v. The Neuromedical Ctr., 161 = F.3d 292,=20 296 (5th Cir. 1998); see also ADA and Psychiatric Disabilities, supra = note 27,=20 at 27-28, 8 FEP Manual (BNA) 405:7475.

106. While from an employer's perspective it may = appear=20 that an employee is "failing" to use medication or follow a certain = treatment,=20 such questions can be complex. There are many reasons why a person would = choose=20 to forgo treatment, including expense and serious side effects.

107. See Vande Zande v. Wisconsin Dep't of = Admin., 44 F.3d=20 538, 544, 3 AD Cas. (BNA) 1636, 1639 (7th Cir. 1995).

108. See 29 C.F.R. pt. 1630 app. =A7 1630.9 = (1997); see also=20 House Judiciary Report, supra note 6, at 39; House Education and Labor = Report,=20 supra note 6, at 65; Senate Report, supra note 6, at 34.

See, e.g., Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 165, 5 = AD Cas.=20 (BNA) 1653, 1659 (5th Cir. 1996); Tips v. Regents of Texas Tech Univ., = 921 F.=20 Supp. 1515, 1518 (N.D. Tex. 1996); Cheatwood v. Roanoke Indus., 891 F. = Supp.=20 1528, 1538, 5 AD Cas. (BNA) 141, 147 (N.D. Ala. 1995); Mears v. = Gulfstream=20 Aerospace Corp., 905 F. Supp. 1075, 1080, 5 AD Cas. (BNA) 1295, 1300 = (S.D. Ga.=20 1995), aff'd, 87 F.3d 1331, 6 AD Cas. (BNA) 1152 (11th Cir. 1996). But = see=20 Schmidt v. Safeway Inc., 864 F. Supp. 991, 997, 3 AD Cas. (BNA) 1141, = 1146-47=20 (D. Or. 1994) (employer had obligation to provide reasonable = accommodation=20 because it knew of the employee's alcohol problem and had reason to = believe that=20 an accommodation would permit the employee to perform the job).

An employer may not assert that it never received a request for = reasonable=20 accommodation, as a defense to a claim of failure to provide reasonable=20 accommodation, if it actively discouraged an individual from making such = a=20 request.

For more information about an individual requesting reasonable = accommodation,=20 see Questions 1-4, supra.

109. See Question 5, supra, for information on = the=20 interactive process.

110. 29 C.F.R. pt. 1630 app. =A7 1630.9 = (1997).

111. 42 U.S.C. =A7 12112(d)(3)(B), (d)(4)(C) = (1994); 29=20 C.F.R. =A7 1630.14(b)(1) (1997). The limited exceptions to the ADA = confidentiality=20 requirements are:
(1) supervisors and managers may be told about = necessary=20 restrictions on the work or duties of the employee and about necessary=20 accommodations; (2) first aid and safety personnel may be told if the = disability=20 might require emergency treatment; and (3) government officials = investigating=20 compliance with the ADA must be given relevant information on request. = In=20 addition, the Commission has interpreted the ADA to allow employers to = disclose=20 medical information in the following circumstances: (1) in accordance = with state=20 workers' compensation laws, employers may disclose information to state = workers'=20 compensation offices, state second injury funds, or workers' = compensation=20 insurance carriers; and (2) employers are permitted to use medical = information=20 for insurance purposes. See 29 C.F.R. pt. 1630 app. =A71630.14(b) = (1997);=20 Preemployment Questions and Medical Examinations, supra note 27, at 23, = 8 FEP=20 Manual (BNA) 405:7201; Workers' Compensation and the ADA, supra note 52, = at 7, 8=20 FEP Manual (BNA) 405:7394.

112. The discussions and examples in this = section assume=20 that there is only one effective accommodation.

113. See 29 C.F.R. pt. 1630 app. =A71630.15(d) = (1996); see=20 also Stone v. Mount Vernon, 118 F.3d 92, 101, 6 AD Cas. (BNA) 1685, 1693 = (2d=20 Cir. 1997) (an employer who has not hired any persons with disabilities = cannot=20 claim undue hardship based on speculation that if it were to hire = several people=20 with disabilities it may not have sufficient staff to perform certain = tasks);=20 Bryant v. Better Business Bureau of Greater Maryland, 923 F. Supp. 720, = 735, 5=20 AD Cas. (BNA) 625, 634 (D. Md. 1996).=20

114. See 42 U.S.C. =A7 12111(10)(B) (1994); 29 = C.F.R. =A7=20 1630.2(p)(2) (1997); 29 C.F.R. pt. 1630 app. =A7 1630.2(p) (1997); TAM, = supra note=20 49, at 3.9, 8 FEP Manual (BNA) 405:7005-07.

115. See Senate Report, supra note 6, at 36; = House=20 Education and Labor Report, supra note 6, at 69. See also 29 C.F.R. pt. = 1630=20 app. =A7 1630.2(p) (1997).

116. See the Appendix on how to obtain = information about=20 the tax credit and deductions.

117. See 29 C.F.R. pt. 1630 app. =A7 1630.15(d) = (1997).

118. Failure to transfer marginal functions = because of its=20 negative impact on the morale of other employees also could constitute = disparate=20 treatment when similar morale problems do not stop an employer from = reassigning=20 tasks in other situations.

119. See Haschmann v. Time Warner Entertainment = Co., 151=20 F.3d 591, 600-02, 8 AD Cas. (BNA) 692, 699-701 (7th Cir. 1998).

120. See Criado v. IBM, 145 F.3d 437, 444-45, 8 = AD Cas.=20 (BNA) 336, 341 (1st Cir. 1998).

121. The ADA's definition of undue hardship does = not=20 include any consideration of a cost-benefit analysis. See 42 U.S.C. =A7 = 12111(10)=20 (1994); see also House Education and Labor Report, supra note 6, at 69 = ("[T]he=20 committee wishes to make clear that the fact that an accommodation is = used by=20 only one employee should not be used as a negative factor counting in = favor of a=20 finding of undue hardship.").

Furthermore, the House of Representatives rejected a cost-benefit = approach by=20 defeating an amendment which would have presumed undue hardship if a = reasonable=20 accommodation cost more than 10% of the employee's annual salary. See = 136 Cong.=20 Rec. H2475 (1990), see also House Judiciary Report, supra note 6, at 41; = 29=20 C.F.R. pt. 1630 app. =A7 1630.15(d) (1997).

Despite the statutory language and legislative history, some courts = have=20 applied a cost-benefit analysis. See, e.g., Monette v. Electronic Data = Sys.=20 Corp., 90 F.3d 1173, 1184 n.10, 5 AD Cas. (BNA) 1326, 1335 n.10 (6th = Cir. 1996);=20 Vande Zande v. Wisconsin Dep't of Admin., 44 F.3d 538, 543, 3 AD Cas. = (BNA)=20 1636, 1638-39 (7th Cir. 1995).

122. See 42 U.S.C. =A7 12112(b)(2) (1994); 29 = C.F.R. =A7=20 1630.6 (1997) (prohibiting an employer from participating in a = contractual=20 relationship that has the effect of subjecting qualified applicants or = employees=20 with disabilities to discrimination).

123. See 42 U.S.C. =A7 12203(b) (1994); 29 = C.F.R. =A7=20 1630.12(b) (1997).

124. For example, under Title III of the ADA a = private=20 entity that owns a building in which goods and services are offered to = the=20 public has an obligation, subject to certain limitations, to remove=20 architectural barriers so that people with disabilities have equal = access to=20 these goods and services. 42 U.S.C.

=A7 12182(b)(2)(A)(iv) (1994). Thus, the requested modification may = be=20 something that the property owner should have done to comply with Title = III.

125. US Airways, Inc. v. Barnett, 535 U.S., 122 = S. Ct.=20 1516, 1523 (2002).

126. Id.

127. See Questions 5-10 for a discussion of the=20 interactive process.

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