Reasonable Accommodation Under the ADA What is Reasonable Accommodation? The Americans with Disabilities Act (ADA) requires em- ployers to provide reasonable accommodation for qualified individuals with disabilities who are employees or appli- cants for employment. Potential reasonable accommoda- tions include making existing facilities accessible, job- restructuring, part-time or modified work schedules, assis- tive technology, providing aides or qualified interpreters, changing tests or policies, and reassignment to a vacant position. The reasonable accommodation obligation also extends to the benefits and privileges of employment, such as employer-sponsored training, services, and social func- tions. Generally, the individual with a disability must in- form the employer that an accommodation is needed. Although the ADA does not require employers to provide accommodations that pose an "undue hardship" (defined as significantly difficult or expensive), the experiences of employers around the nation demonstrates that many ac- commodations cost nothing, and few pose the "significant expense" that many employers fear. Studies conducted in 1986 and in 1992 showed that more than half of the accom- modations made for employees with disabilities cost noth- ing, while another fifteen percent cost under $500. Tax credits are available to businesses who remove architec- tural barriers, target jobs for individuals with disabilities, or provide assistive technology or interpreters to workers with disabilities. Employers are required to provide reasonable accommoda- tion for qualified individuals with a disability, who are de- fined by the ADA as individuals with a disability who satisfy the job-related requirements of the position held or desired, and who can perform the "essential functions" of such position, with or without reasonable accommodation. The employer identifies the job's essential functions; job descriptions prepared before an individual is interviewed or selected for a position are considered evidence of a job's essential functions. If the individual cannot perform an essential function, even with accommodation, the individ- ual is not considered "a qualified individual with a disabil- ity" under the law. The employer should confer with the employee regarding the type of accommodation that will enable the employee to perform the essential functions of the position. The re- quirements of the particular position and the employee's physical or mental limitations should be evaluated in order to determine one or more potential accommodations that will be effective. If a reasonable accommodation poses an undue hardship, it need not be implemented. Undue hardship is evaluated by assessing various factors, including the nature and net cost of the accommodation, the overall financial resources of the facility and the larger business entity, and the impact of the accommodation on the operation of the facility. Ac- commodations of a personal nature that are used both on and off the job (such as a guide dog for a visually- impaired employee, or a wheelchair) would not be the employer's responsibility. The employer need not create a new job for the person with the disability, nor must the employer reallocate essential functions to another worker. An employer may be required to restructure a job by reallocating nonessential, marginal job functions. For example, the Postal Service refused to promote a hearing-impaired secretary because she could not answer the telephone. The court ordered the Postal Service to promote the individual, noting that several other secretaries were available to answer the telephone, and that simply because telephone answering was considered a low status assignment did not make it an essential function of the secretary's job. Some courts and the EEOC have taken the position that where the work is performed is another policy that may have to be modified as a reasonable accommodation for certain jobs, so long as the accommodation is effective and does not pose an undue hardship. The EEOC has noted that certain jobs such as a food server or cashier can only be performed at a work site, while other jobs such as a telemarketer or proofreader could be done at home. The EEOC has stated that certain considerations are relevant to the determination of whether a job can be performed at home, including supervision and the need to work with certain equipment that cannot be replicated at home. The courts that have rejected working at home as a reasonable accommodation focus on evidence that personal contact, interaction and coordination are needed for a specific posi- tion. Employers who fear that accommodating a worker with a disability will lower the morale of coworkers will not find this a helpful defense to an ADA charge. Nor will the con- cern that coworkers or customers will not wish to associate with an individual with a disability be an appropriate reason to deny such an individual employment. Accommodating a Worker with a Disability The accommodation process begins before the disabled worker is hired (or identified, if it is a current employee who becomes disabled after being hired). Written job descrip- tions prepared before advertising or interviewing appli- cants are evidence of whether particular job functions are essential, but other evidence, such as what previous or current holders of the job actually do, is also relevant. Job descriptions should be reviewed to ensure that they in- clude the essential functions of each job, particularly with regard to physical requirements. Statements such as "all incumbents must perform all functions of the position," or "there is no light duty in this department" are not determi- native of whether a reasonable accommodation must be provided. Recruiters or interviewers must be trained regarding what inquiries, which are permissible under the ADA. Under the ADA, an employer may not ask about the existence, nature, or severity of a disability and may not conduct medical examinations until after it makes a conditional job offer to the applicant. This prohibition ensures that the applicant's hidden disability is not considered prior to the assessment of the applicant's non-medical qualifications. At this pre-offer stage, employers may ask about an appli- cant's ability to perform specific job-related functions. An employer generally may not ask an applicant whether s/he needs a reasonable accommodation for the job during the hiring process prior to a conditional offer being made, ex- cept when the employer knows that an applicant has a dis- ability -- either because it is obvious or because the applicant has voluntarily disclosed the information -- and could reasonably believe that the applicant will need a rea- sonable accommodation to perform specific job functions. If the applicant replies that s/he does, the employer may inquire as to what type of accommodation is needed. An employer also may ask other questions that are not disabil- ity-related and may require examinations that are not medi- cal. After a conditional offer of employment is made, an em- ployer may require a medical examination or make disability- related inquiries if all entering employees are subject to the exam or inquiry. An employer also may inquire whether applicants will need reasonable accommodation related to anything connected to the job, including access to benefits and privileges of employment, as long as all entering em- ployees in the same job category are asked this question. Alternatively, an employer may ask a specific applicant if s/he needs a reasonable accommodation if the employer knows that this applicant has a disability -- either because it is obvious or because the applicant has voluntarily dis- closed the information -- and could reasonably believe that the applicant will need a reasonable accommodation. If the applicant replies that s/he does, the employer may ask what type of accommodation is needed. If an examination or inquiry screens out an individual be- cause of disability, the exclusionary criterion must be job- related and consistent with business necessity. The em- ployer also must show that the criterion cannot be satisfied and the essential functions cannot be performed with rea- sonable accommodation. Employers are also permitted to conduct medical examinations and make disability-related inquiries of employees if such exams or inquiries are job- related and consistent with business necessity. The employer must keep any medical information obtained confidential. This means that the employer must collect and maintain the information on separate forms and in separate medical files. The employer may disclose the in- formation only to persons and entities specified in the ADA. Employers may use any kind of test to determine job quali- fications. However, qualification standards, tests or other selection criteria that screen out an individual with a dis- ability or a class of individuals with disabilities will violate the ADA unless shown to be job-related and consistent with business necessity. Even if this showing can be made, an employer must consider whether the criteria can be met, or job performance accomplished with the provision of reasonable accommodation. In addition, tests must be administered to an applicant or employee with a disability in a way that ensures that the test results accurately reflect the skills, aptitude, or whatever other factor is being tested, rather than reflecting the impaired sensory, manual or speaking skills of the person, unless these skills are what is being tested. Reasonable Accommodation and Safety Some employers are concerned that a worker with a disabil- ity could be a safety hazard, either to herself or to co- workers or customers. The law takes this concern into ac- count, but only if it is founded upon clear, documented evidence that the individual is a "direct threat" to herself or others because of the nature of the job and the specific characteristics of that individual's disability. In determining whether an individual with a disability poses a direct threat, including an individual with a contagious disease, the factors to be considered include: 1) the duration of the risk; 2) the nature and severity of the potential harm; 3) the likelihood that the potential harm will occur; and 4) the imminence of the potential harm. Even if the person is found to pose a significant risk of substantial harm, part of the reasonable accommodation determination is an analysis of whether the individual can be accommodated in a way that eliminates the direct threat or reduces it to an acceptable level. In general, blanket exclusions of particular conditions are difficult to justify, especially if the employer does not per- form an individualized assessment of the individual being excluded. There have been court decisions striking down blanket exclusions of individuals with diabetes in both the law enforcement and truck driver context. However, in an- other case, a court found that a diabetic police recruit posed a direct threat because he had suffered two episodes where he became dysfunctional and disoriented while on duty. Another court found that a bus driver's diabetes, severe heart condition, and hypertension made him a direct threat. In contrast, a school van driver with a hearing impairment was found not to pose a direct threat. The court noted, after doing an individualized assessment, that there was no evidence that the driver had any problems driving the van, no evidence of prior accidents or close calls, and no evi- dence that she was ever distracted from her duties because of her impairment. In another case involving an epileptic shoe salesman, a court noted that even if the salesman posed a danger because of the risk of epileptic seizures, there were reasonable accommodations available, such as removing stock from high shelves so that the salesman would not have to climb ladders, which would eliminate the direct threat. In general, the key here is to obtain individu- alized medical information about the limitations that are posed by the worker's disability and the probable harm that this individual's specific physical or psychological problems will pose for the position in question. Reasonable Accommodation and Worker Misconduct The ADA protects individuals with mental as well as physical disabilities, and the reasonable accommodation requirement applies in the same way for both kinds of dis- abilities. However, employers may hold individuals with disabilities to the same performance and conduct standards as other workers; if the worker engages in misconduct that warrants discipline under the employer's policy, even if the conduct is related to the individual's disability, the em- ployer may discipline the worker. If an employee requests accommodation prior to engaging in misconduct, e.g., leave to attend therapy sessions, the accommodation must be provided unless it would impose an undue hardship. On the other hand, if the employee engages in misconduct prior to requesting the accommoda- tion, the employer may impose the appropriate discipline. This may include discharge, depending on the employer's discipline policy and the nature of the misconduct in- volved. If the employer has a policy of progressive disci- pline, the employer may impose discipline short of discharge and then provide an accommodation that would enable the employee to meet the conduct standards. Off-duty misconduct may also be grounds for discharge or discipline, even if the worker asserts that the disability "caused" the misconduct. In most cases that have reached the courts, the misconduct was related to alcohol or drug abuse, and the employer was able to demonstrate that be- ing required to retain the individual would be an undue hardship, because the job itself required the individual to demonstrate good judgment or to be law-abiding (such as a police officer or an FBI agent). Employees whose excessive absences or tardiness create problems for the employer are not necessarily protected even if the attendance problems are related to the disability. However, the employer must consider whether a reasonable accommodation (such as a different work schedule, addi- tional paid or unpaid time off, or working at home) is possi- ble and whether such an accommodation would constitute an undue hardship. Employers should train their staff about the general re- quirements of the ADA, with particular emphasis on defin- ing the essential functions of each position and the accommodation requirement. Learning to assess the indi- vidual first, and the disability second, working with the individual and his or her counselor, medical professional, or other knowledgeable persons in fashioning the appropriate accommodation, and responding to requests to review the effectiveness of the accommodation will very likely satisfy the demands of the ADA, the practical needs of the indi- vidual with a disability, and the employer's need for a pro- ductive and committed workforce. Resources ADA Regional Disability and Business Technical Assistance Center Hotline, (800) 949-4232 (voice/TDD). Job Accommodation Network, 918 Chestnut Ridge Road, Suite 1, Morgantown, WV 26506-6080, (800) ADA-WORK (voice/TDD). U.S. Equal Employment Opportunity Commission, 1801 L Street, NW, Washington, DC 20507, (800) 669-4000 (voice), (800) 800- 3302 (TDD), or (800) 666-EEOC (publications). This brochure is one of a series on human resources prac- tices and workplace accommodations for persons with disabilities edited by Susanne M. Bruyère, Ph.D., CRC, SPHR, Director, Program on Employment and Disability, School of Industrial and Labor Relations - Extension Di- vision, Cornell University. It was updated by Sheila D. Duston, an attorney/mediator practicing in the Washing- ton, D.C. metropolitan area, in May 2000. The original brochure was written by Barbara A. Lee, Associate Profes- sor, Institute of Management and Labor Relations, Rut- gers University, New Brunswick, New Jersey. Cornell University was funded in the early 1990's by the U.S. Department of Education National Institute on Dis- ability and Rehabilitation Research as a National Mate- rials Development Project on the employment provisions (Title I) of the ADA (Grant #H133D10155). These up- dates, and the development of new brochures, have been funded by Cornell's Program on Employment and Disabil- ity, the Pacific Disability and Business Technical Assis- tance Center, and other supporters. Cornell University currently serves as the Northeast Dis- ability and Business Technical Assistance Center. Cornell is also conducting employment policy and practices re- search, examining private and federal sector employer responses to disability civil rights legislation. This re- search has been funded by the U.S. Department of Educa- tion National Institute on Disability and Rehabilitation Research (Grant #H133A70005) and the Presidential Task Force on Employment of Adults with Disabilities. The full text of this brochure, and others in this series, can be found at: www.ilr.cornell.edu/ped/ada. Research re- ports relating to employment practices and policies on disability civil rights legislation, are available at: www.ilr.cornell.edu/ped/surveyresults.html. For further information, contact the Program on Employ- ment and Disability, Cornell University, 102 ILR Exten- sion, Ithaca, New York 14853-3901; 607/255-2906 (Voice), 607/255-2891 (TDD), or 607/255-2763 (Fax). More information is also available from the ADA Techni- cal Assistance Program and Regional Disability and Business Technical Assistance Centers, (800) 949-4232 (voice/TTY), www.adata.org Disclaimer This material was produced by the Program on Employment and Disability, School of Industrial and Labor Relations- Extension Division, Cornell University, and funded by a grant from the National Institute on Disability and Rehabili- tation and Rehabilitation Research (grant #H133D10155). The U.S. Equal Employment Opportunity Commission has reviewed it for accuracy. However, opinions about the Americans with Disabilities Act (ADA) expressed in this material are those of the author, and do not necessarily reflect the viewpoint of the Equal Employment Opportunity Commission or the publisher. The Commission's interpre- tations of the ADA are reflected in its ADA regulations (29 CFR Part 1630), Technical Assistance Manual for Title I of the Act, and EEOC Enforcement Guidance. Cornell University is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to pro- vide information, materials, and technical assistance to in- dividuals and entities that are covered by the Americans with Disabilities Act (ADA). However, you should be aware that NIDRR is not responsible for enforcement of the ADA. The information, materials, and/or technical assis- tance are intended solely as informal guidance, and are neither a determination of your legal rights or responsibili- ties under the Act, nor binding on any agency with en- forcement responsibility under the ADA. The Equal Employment Opportunity Commission has is- sued enforcement guidance which provides additional clari- fication of various elements of the Title I provisions under the ADA. Copies of the guidance documents are available for viewing and downloading from the EEOC web site at: http://www.eeoc.gov Reasonable Accommodation Under the ADA July 2000 CORNELL UNIVERSITY