Providing Reasonable Job Accommodations – Ask #HR Bartender
We’ve talked about working from home before. Today’s reader note provides an interesting twist with regard to reasonable job accommodations.
I received a doctor’s note for an employee that says, ‘…saw the employee today and she can return to work, but the patient needs to be able to work from home until further notice.’ I know reasonable accommodations are required for a qualified disability, but I have no other information than that. What should I do?
Many of us are familiar with the term reasonable job accommodations as part of the Americans with Disabilities Act (ADA). Several states have their own laws mimicking the ADA which would be impossible for us to address in a single article.
But we haven’t talked about the ADA lately, so I asked Elizabeth Bolduc, an associate attorney with Bugbee & Conkle, LLP to share her expertise. She focuses her work in the areas of labor and employment law. Please remember that Elizabeth’s comments shouldn’t be construed as legal advice or as pertaining to any specific factual situations. If you have detailed questions, they should be addressed with your friendly neighborhood labor and employment attorney.
Elizabeth, welcome to HR Bartender. Obviously, we can’t address all of the state laws that are similar to the ADA. But from a federal standpoint, what are reasonable job accommodations?
[Bolduc] The term ‘reasonable accommodation’ comes from Title I of the Americans with Disabilities Act of 1990 (the ‘ADA’). The ADA requires employers to provide ‘reasonable accommodations’ to qualified employees or applicants with disabilities unless doing so would create an undue hardship or direct threat to others or themselves in the workplace.
A reasonable accommodation is essentially a modification or change in the workplace, including to an individual’s position or a workplace policy, to enable an individual with a disability to enjoy equal employment opportunities.
Are employers required to provide reasonable job accommodations? And if so, under what circumstances?
[Bolduc] Yes, under certain circumstances. The ADA applies to employers who employ 15 or more individuals (although state laws may, and tend to, require fewer employees).
As mentioned above, the ADA requires employers to provide reasonable accommodations to qualified disabled individuals unless doing so would create an undue hardship. An individual is ‘qualified’ if they can perform the essential functions of the position with or without accommodation.
Following the ADA Amendment Act of 2008 (ADAAA), the definition of ‘disability’ is construed broadly to mean, ‘a physical or mental impairment that substantially limits one or more major life activities; a record or past history of such impairment; or being regarded as having a disability.’
If these coverage prerequisites are met – meaning the employer is covered by the ADA, the individual is qualified for the position, and the individual is disabled under the ADA – then the employer’s duty to provide a reasonable accommodation is triggered when either:
- A disabled employee or applicant requests an accommodation, or
- When the employer becomes aware that a disabled employee needs an accommodation to perform their job.
From there the employer and disabled employee must engage in the interactive process, which is simply a dialogue between the two parties to determine what, if any, accommodation should be provided.
Are reasonable accommodations expensive? Why or why not?
[Bolduc] In my experience, there are many reasonable accommodations that are not expensive or even monetary for that matter. Remember an employer does not have to provide a reasonable accommodation that would cause an‘undue hardship’. Cost can certainly be a factor in demonstrating undue hardship to the employer.
Can you share some common reasonable job accommodations? Is working from home one of them?
[Bolduc] There are a number of possible reasonable accommodations that an employer may have to provide. Some common examples are:
- Making existing facilities accessible; acquiring or modifying equipment;
- Reassignment to a vacant position; part-time or modified work schedules;
- Changing tests, training materials, or policies;
- Providing qualified interpreters;
- Job restructuring; reallocating or altering marginal job duties that a disabled employee is unable to perform; and
- Leaving to obtain medical treatment.
Examples of unreasonable accommodations are creating a new position, eliminating the essential functions of the position, promoting someone, displacing a coworker, or where the individual’s disability imposes a direct threat to others or themselves in the workplace.
Whether working from home is a reasonable accommodation will depend on whether the essential functions of the position can actually be performed at home and/or whether physical presence is an essential function of that position. An employer may also consider, for example, its ability to effectively communicate with and supervise the employee at home, whether adequate work equipment can be installed at the employees’ home, and whether there are security risks in allowing the employee to work from home.
There are some jobs that by their very nature cannotbe performed at home, such as store clerk. However, it may be reasonable where an employee may perform the essential functions at home, such as a customer service representative.
When it comes to reasonable accommodations, are terms like “until further notice” the norm? Are employers able to push back and request more specificity?
[Bolduc] Without more context,it is hard to say. Employers are entitled to know that the individual has a covered disability for which it needs reasonableaccommodation and the individual’s limitations due to the disability.
When an individual’s disability and/or the need for accommodation is not obvious, an employer may require more specificity by requiring the individual to submit documentation about the disability and the functional limitations from the individual’s health care provider. However, the request for medical documentation must be relevant to the individual’s disability and need for accommodation. It does not privity the employer to know everything about the individual’s medical history.
In certain circumstances, an employer may require a medical examination by the health care provider of the employer’s choice, so long as the exam is limited to determining the ADA disability and the functional limitations that requiresan accommodation, but the employer must pay for the exam.
Last question. If employers have questions about creating reasonable accommodations, where can they go to learn more?
[Bolduc] There are a lot of FREE online resources that employers can use.
U.S. Department of Labor (USDOL)
https://www.dol.gov/odep/pubs/fact/ada.htm
Equal Employment Opportunity Commission (EEOC)
https://www.eeoc.gov/eeoc/publications/ada17.cfm
https://www.eeoc.gov/facts/ada17.html
U.S. Department of Justice (DOJ) ADA home page
Job Accommodation Network (JAN)
Americans with Disabilities Act National Network
A HUGE thanks to Elizabeth for sharing her knowledge with us. If you want to stay in touch with her (and I know you do), be sure to subscribe to Bugbee & Conkle’s publications at www.bugbeelawyers.com and follow her on Twitter @EmploymentLawEB.
While we might not talk about it every day, legislation like the Americans with Disabilities Act is still a big part of our roles. Understanding our obligations under the law is essential.
Image captured by Sharlyn Lauby after attending WorkHuman in Austin, TX
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