After the ADAAA: Reasonable Accommodation Update. Oct. 5, 2012 Prince William County SHRM. Recognizing Accommodation Requests. --Accommodation request is a request for some sort of change for a medical reason; request need not be in writing and need not contain any “magic words”
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Oct. 5, 2012
Prince William County SHRM
Employer’s denial of request on ground that information provided was not specific enough, without advising employee and asking for the additional details needed, can render the employer responsible for the breakdown in the interactive process. Valle-Acre v. Puerto Rico Ports Auth., 651 F.3d 190 (1st Cir. 2011).
May be made at any time during the application process or during employment
An employee does not lose the right to request an accommodation because he did not do so during the application stage
Employees may make more than one request for reasonable accommodation
1. Need not be a “severe” limitation or “significantly restricted”
2. Major life activities include “major bodily functions”
3. Ameliorative effects of mitigating measures not considered
4. Impairments that are “episodic” or “in remission” are substantially limiting if they would be when active
Back or leg impairment that causes significant pain if standing more than two hours = substantially limited in standing
Impairment that does not cause pain until the 11th mile of walking not substantially limited in walking
Back or leg impairment that causes 20 lb. lifting restriction expected to last several months = substantially limited in lifting
-- but not everything is covered: court cases finding limitations too minor and short-term (H1N1 virus, torn-ACL, post-colonoscopy discomfort, etc.) and cases finding insufficient evidence of limitations
Employer may ask employee to obtain information from treating health care provider, or ask employee to sign limited release allowing employer to contact doctor directly.
For example, employer might seek to verify diagnosis and limitations, follow up to clarify limitations, and/or determine what accommodation might be effective.
If adopting internal reasonable accommodation procedures spelling out your process, consider indicating who is authorized to request and review medical information from employee and/or employee’s health care provider, and to have any follow up communications.
Title II of GINA prohibits employers from requesting, requiring, or purchasing genetic information (which includes family medical history) of applicants and employees
Inadvertent acquisition of genetic information does not violate Title II of GINA
If request for documentation for accommodation indicates that genetic information should not be provided, any genetic information employer gets will be deemed inadvertent; see GINA regulations for model language
May arise if employee requests to be relieved of performing a particular duty due to medical restrictions
(To be “qualified,” employee must be able to perform the essential (or fundamental) functions of a position (with accommodation, if needed, or without reasonable accommodation, if not needed).
An employer never has to eliminate an essential function of a job as an accommodation.
If accommodation requested involves removing a duty, is it an essential function?
If the employee cannot be accommodated to perform the essential function, he is not qualified for that position, but he may still be qualified…can the employee be reassigned to a vacant position for which he is qualified (the accommodation of last resort)?
Sign language interpreters and readers
Assistive technology and modification of equipment or devices
Modified work schedules
Making exceptions to policies
Job restructuring (swapping or eliminating marginal functions)
Changing supervisory methods
Reassignment to a vacant position
Consider the following factors:
Nature and cost of the accommodation (“significant difficulty or expense”)
Resources available to the employer overall (not just individual department)
Impact of the accommodation on operations
Lowering production or performance standards (though pro-rate production requirements for period of leave as an accommodation)
Excusing violations of conduct rules that are job-related and consistent with business necessity
Removing an essential function
Monitoring an employee’s use of medication
Providing personal use items
Changing someone’s supervisor (though changing supervisory methods may be required)
Actions that would result in undue hardship (i.e. significant difficulty or expense)
Employer should engage in an interactive process with the individual asking for the accommodation.
May involve determining (1) whether the requester has a disability, (2) whether requested accommodation is medically needed, and/or (3) what accommodations are possible.
Implications of “good faith” provision in 42 U.S.C. Section 1981a
Employer has discretion to choose among equally effective accommodations where there is more than one possibility.
Determine the limitations at issue caused by the employee’s medical condition, what accommodation the employee needs for those limitations, and determine if it can be provided without undue hardship.
Communicate, exchange information, search for solutions, consult resources as needed
Employer cannot deny accommodation because co-workers may be resentful. Carter v. Pathfinder Energy, 662 F.3d 1134 (10th Cir. 2011).
Accommodation of last resort
Position must be vacant
Must be equal in terms of pay, status, etc., or as close as possible
Is not limited geographically
Employee must be qualified for the new position, but does not have to be best qualified
Vacant means that the position is available or will become available within a reasonable time
Does not have to be a promotion
Employer does not have to bump another employee to create a vacancy
Reassignment that would violate seniority system generally is not reasonable
Employer does not have to pay cost of relocation, unless it does so for other employees who transfer voluntarily
Employers must keep medical Information about applicants and employees confidential, including fact that someone has requested or is receiving a reasonable accommodation.
- information may be disclosed to supervisors and managers for necessary work restrictions or reasonable accommodations
- information may be disclosed to individuals involved in making decisions about reasonable accommodations
where necessary for emergency treatment
to officials investigating compliance with the ADA
for workers’ compensation and insurance purposes
Many employers may take actions that are not required as reasonable accommodations
Employer will not be deemed to have regarded an individual as disabled just because it exceeded its legal obligations
Employer may inform an employee that it is taking an action beyond what the law requires
But beware of disparate treatment
Examples of situations in which an employer may want to exceed its obligations include:
Accommodating a condition that is not substantially limiting
Providing a temporary measure while considering a request for reasonable accommodation
Respond to requests promptly, as undue delay may constitute a denial of accommodation
Engage in good faith in the interactive process
Construe “disability” broadly
Individualized assessment: Do not assume that individuals with the same disability have the same limitations or need the same accommodation
Gather information about possible accommodations
If denying any reasonable accommodation, clearly communicate the reasons
Job Accommodation Network (JAN)
Senior Attorney Advisor
Office of Legal Counsel
U.S. Equal Employment Opportunity Commission