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  Small Employers And Reasonable Accommodation

                      
                        

          
          
                        Small Employers And Reasonable Accommodation
              


          
  Notice Concerning The Americans With Disabilities Act Amendments Act Of 2008The Americans with Disabilities Act (ADA) Amendments Act of 2008 was signed into law on September 25, 2008 and becomes effective January 1, 2009. Because this law makes several significant changes, including changes to the definition of the term "disability," the EEOC will be evaluating the impact of these changes on this document and other publications. See the list of specific changes to the ADA made by the ADA Amendments Act.IntroductionThe Americans with Disabilities Act (ADA) requires an employer with 15 or more employees to provide reasonable accommodation for individuals with disabilities, unless it would cause undue hardship. A reasonable accommodation is any change in the work environment or in the way a job is performed that enables a person with a disability to enjoy equal employment opportunities. There are three categories of "reasonable accommodations":changes to a **job application process**changes to the **work environment**, or to the **way a job is usually done**changes that enable an employee with a disability to enjoy **equal benefits and privileges of employment** (such as access to training).Although many individuals with disabilities can apply for and perform jobs without any reasonable accommodations, workplace barriers may keep others from performing jobs which they could do with some form of accommodation. These barriers may be physical obstacles (such as inaccessible facilities or equipment), or they may be procedures or rules (such as rules concerning when work is performed, when breaks are taken, or how job tasks are performed). Reasonable accommodation removes workplace barriers for individuals with disabilities.This guide answers some of the key questions facing small businesses in connection with reasonable accommodations. It explains the obligations of both employers and individuals with disabilities, and reviews the limits on how far employers must go in providing reasonable accommodations.This guide is adapted from the Equal Employment Opportunity Commission's Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA. Small employers wishing to learn more about reasonable accommodation and undue hardship should call **1-800-669-3362** to request a free copy of the Enforcement Guidance, or review it at EEOC's website, **www.eeoc.gov**.Requesting Reasonable Accommodation**How must an individual** request a reasonable accommodation?The individual must let the employer know that s/he needs an adjustment or change at work for a reason related to a medical condition. An individual may use "plain English" and need not mention the ADA or use the phrase "reasonable accommodation." Requests for reasonable accommodation do not need to be in writing, though an employer may choose to write a memorandum or letter confirming the request.What must an employer do **after receiving a request for reasonable accommodation**?When the **disability and/or the need for accommodation is not obvious**, the employer may ask the individual for **reasonable documentation** about his/her disability and functional limitations.The employer and the individual with a disability should **engage in an informal process** to clarify what the individual needs and identify the appropriate reasonable accommodation. The employer may ask the individual questions that will enable it to make an informed decision about the request. This includes asking what type of reasonable accommodation is needed.There are extensive public and private resources to help employers and individuals with disabilities who are not familiar with possible accommodations. (See the Appendix to this guide for a resource directory to help identify reasonable accommodations.)Must an employer provide the reasonable accommodation **that the individual wants**?**The employer may choose among reasonable accommodations as long as the chosen accommodation is effective (i.e., it removes the workplace barrier at issue)**. The employer may offer alternative suggestions for reasonable accommodations to remove the workplace barrier in question. If there are two possible reasonable accommodations, and one costs more or is more difficult to provide, the employer may choose the one that is less expensive or easier to provide, as long as it is effective.**How quickly must an employer respond** to a request for reasonable accommodation?An employer should respond promptly to a request for reasonable accommodation. If the employer and the individual with a disability need to engage in an interactive process, this too should proceed as quickly as possible. Similarly, the employer should act promptly to provide the reasonable accommodation.Types Of Reasonable AccommodationsThere are many different kinds of reasonable accommodations. Below is information on some of them.Is **restructuring a job** a reasonable accommodation?Yes. This includes: (1) shifting responsibility to other employees for minor job tasks that an employee is unable to perform because of a disability; and (2) altering when and/or how a job task is performed. If an employee is unable to perform a minor job task because of a disability, an employer can require the employee to perform a different minor job function in its place.Is providing **leave** necessitated by an employee's disability a form of reasonable accommodation? 1Yes, absent undue hardship, providing **unpaid leave** is a form of reasonable accommodation. However, **an employer does not have to provide more paid leave** than it provides to other employees.May an employer apply a **"no-fault" leave policy**, under which employees are automatically terminated after they have been on leave for a certain period of time, to an employee with a disability who needs additional leave?If an employee with a disability needs additional unpaid leave as a reasonable accommodation, the employer must provide the employee with the additional leave even if it has a "no-fault" policy. An employer, however, does not need to provide leave if: (1) it can provide an effective accommodation that allows the person to keep working, or (2) it can show that granting additional leave would cause an undue hardship.When an employee requests leave as a reasonable accommodation, may an employer provide an accommodation that **requires him/her to remain on the job** instead?Yes, if the employer's proposed reasonable accommodation would be effective and eliminate the need for leave. Accordingly, an employer may reallocate minor job tasks or provide a temporary transfer instead of leave, so long as the employee can still address his/her medical needs.Is a **modified or part-time schedule** a reasonable accommodation?Yes, absent undue hardship. A modified schedule may involve adjusting arrival or departure times, providing periodic breaks, altering when certain job tasks are performed, allowing an employee to use accrued paid leave, or providing additional unpaid leave.Is it a reasonable accommodation to **modify a workplace policy** because of an employee's disability?Yes. For example, granting an employee time off from work or an adjusted work schedule as a reasonable accommodation may involve modifying leave or attendance procedures or policies. However, reasonable accommodation only requires that the employer modify the policy for an employee with a disability. The employer may continue to apply the policy to all other employees.Does an employer have to **reassign to a vacant position** an employee who can no longer perform his/her job because of a disability?Yes, unless the employer can show that it would be an undue hardship. The following criteria apply to reassignment:An employee must be "qualified" for the new position. This means that s/he: (1) satisfies the skill, experience, education, and other job-related requirements of the position, and (2) can perform the primary job tasks of the new position, with or without reasonable accommodation. The employer does not have to assist the employee to become qualified.An employer does not have to bump other employees or create a position. Nor does an employer have to promote the employee.Reassignment should be to a position that is **equal in pay and status** to the position that the employee held, or to one that is as close as possible in terms of pay and status if an equivalent position is not vacant.Does a reasonable accommodation include **changing a person's supervisor?**No. The ADA may, however, require that supervisory methods, such as the method of communicating assignments, be altered as a form of reasonable accommodation.Other Reasonable Accommodation IssuesAre there certain things that **are not considered reasonable accommodations and are therefore not required?**An employer **does not have to eliminate a primary job responsibility**.An employer is **not required to lower production standards** that are applied to all employees, though it may have to provide reasonable accommodation to enable an employee with a disability to meet them.An employer **does not have to provide*****personal use items***, such as a prosthetic limb, a wheelchair, eyeglasses, hearing aids, or similar devices.An employer **never has to excuse a violation of a uniformly applied conduct rule** that is job-related and consistent with business necessity. This means, for example, that an employer never has to tolerate or excuse violence, threats of violence, stealing, or destruction of property. An employer may discipline an employee with a disability for engaging in such misconduct if it would impose the same discipline on an employee without a disability.May an employer **tell other employees that someone is receiving a reasonable accommodation**?No, because this usually amounts to a disclosure that the individual has a disability. The ADA specifically prohibits the disclosure of medical information except in certain limited situations, which do not include disclosure to coworkers.An employer may certainly respond to a question from an employee about why a coworker is receiving what is perceived as "different" or "special" treatment by emphasizing its policy of assisting any employee who encounters difficulties in the workplace. The employer also may find it helpful to point out that many of the workplace issues encountered by employees are personal, and that, in these circumstances, it is the employer's policy to respect employee privacy. An employer may be able to make this point effectively by 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 kind of workplace change for personal reasons. Employers might also find it helpful to provide all employees with information about various laws that require employers to meet certain employee needs (e.g., the ADA and the Family and Medical Leave Act), while also requiring them to protect the privacy of employees.**May an employer ask whether a reasonable accommodation is needed** when an employee with a disability has not asked for one?If an employer knows that an employee has a disability, it may ask whether s/he needs a reasonable accommodation when it reasonably believes that the employee may need an accommodation. An employer also may ask an employee with a disability who is having performance or conduct problems if s/he needs reasonable accommodation.Undue Hardship:Limits On Providing Reasonable AccommodationsAn employer never has to provide any reasonable accommodation that causes **undue hardship**, meaning significant difficulty or expense. Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive or disruptive, or those that would fundamentally alter the nature or operation of the business.Every request for reasonable accommodation should be evaluated separately to determine if it would impose an undue hardship, taking into account:the nature and cost of the accommodation needed;the overall financial resources of the business; the number of persons employed by the business; and the effect on expenses and resources of the business;the impact of the accommodation on the business.If cost is an issue, an employer should determine whether funding is available from an outside source, such as a state rehabilitation agency, to pay for all or part of the accommodation. In addition, the employer should determine whether it is eligible for certain tax credits or deductions to offset the cost of the accommodation. Also, to 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 will pay the difference.An employer cannot claim undue hardship based on employees' (or customers') fears or prejudices, or because providing a reasonable accommodation might have a negative impact on employee morale. Employers, however, may claim undue hardship where a reasonable accommodation would be **unduly disruptive to other employees' ability to work**.Must an employer modify the work hours of an employee with a disability if doing so **would prevent other employees from performing their jobs**?No. If modifying one employee's work hours (or granting leave) would prevent other employees from doing their jobs, then the significant disruption to the operations of the employer constitutes an undue hardship.Can an employer deny a request for leave **when an employee cannot provide a fixed date of return**?In some situations, an employee may be able to provide only an **approximate date of return** because treatment and recuperation do not always permit exact timetables. If an employer is able to show that the lack of a fixed return date imposes an undue hardship, then it can deny the leave. Undue hardship could result if the employer can neither plan for the employee's return nor permanently fill the position. In other situations, an employer may be able to be flexible.**Footnote**:1 Employers who are covered by the Family and Medical Leave Act (FMLA) may have obligations under that law, as well as the ADA. For more information on how these two laws apply to leave and modified schedules, employers may consult the EEOC's Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA and the EEOC's Fact Sheet on the FMLA and the ADA.APPENDIXResources For Locating Reasonable Accommodations**U.S. Equal Employment Opportunity Commission**1-800-669-3362 (Voice) 1-800-800-3302 (TT)The EEOC's Publication Center has many free documents on the Title I employment provisions of the ADA, including both the statute, 42 U.S.C. § 12101 et seq. (1994), and the regulations, 29 C.F.R. § 1630 (1997). In addition, the EEOC has published a great deal of basic information about reasonable accommodation and undue hardship. The two main sources of interpretive information are: (1) the Interpretive Guidance accompanying the Title I regulations (also known as the "Appendix" to the regulations), 29 C.F.R. pt. 1630 app. §§ 1630.2(o), (p), 1630.9 (1997) , and (2) A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act III, 8 FEP Manual (BNA) 405:6981, 6998-7018 (1992). The Manual includes a 200-page Resource Directory, including federal and state agencies, rehabilitation agencies (that may be able to pay some/all of the costs for certain reasonable accommodations), and disability organizations that can provide assistance in identifying and locating reasonable accommodations.The EEOC also has discussed issues involving reasonable accommodation in the following guidances and documents: (1) Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations at 5, 6-8, 20, 21-22, 8 FEP Manual (BNA) 405:7191, 7192-94, 7201 (1995); (2) Enforcement Guidance: 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 and Psychiatric Disabilities at 19-28, 8 FEP Manual (BNA) 405:7461, 7470-76 (1997); and (4) Fact Sheet on the Family and Medical Leave Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act of 1964 at 6-9, 8 FEP Manual (BNA) 405:7371, 7374-76 (1996).Finally, the EEOC has a poster that employers and labor unions may use to fulfill the ADA's posting requirement.All of the above-listed documents, with the exception of the ADA Technical Assistance Manual and Resource Directory and the poster, are also available through the Internet at http://www.eeoc.gov.**U.S. Department of Labor** (To obtain information on the Family and Medical Leave Act)To request written materials: 1-800-959-3652 (Voice) 1-800-326-2577 (TT)To ask questions: (202) 219-8412 (Voice)**Internal Revenue Service** (For information on tax credits and deductions for providing certain reasonable accommodations)(202) 622-6060 (Voice)**Job Accommodation Network (****JAN****)**1-800-232-9675 (Voice/TT)http://janweb.icdi.wvu.edu/A service of the President's Committee on Employment of People with Disabilities. JAN can provide information, free-of-charge, about many types of reasonable accommodations.**ADA****Disability and Business Technical Assistance Centers (****DBTAC****s)**1-800-949-4232 (Voice/TT)The DBTACs consist of 10 federally funded regional centers that provide information, training, and technical assistance on the ADA. Each center works with local business, disability, governmental, rehabilitation, and other professional networks to provide current ADA information and assistance, and places special emphasis on meeting the needs of small businesses. The DBTACs can 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 transliteration services.**RESNA Technical Assistance Project**(703) 524-6686 (Voice) (703) 524-6639 (TT)http://www.resnaprojects.org/RESNA, the Rehabilitation Engineering and Assistive Technology Society of North America, can refer individuals to projects in all 50 states and the six territories offering technical assistance on technology-related services for individuals with disabilities. Services may include:information and referral centers to help determine what devices may assist a person with a disability (including access to large data bases containing information on thousands of commercially available assistive technology products),centers where individuals can try out devices and equipment,assistance in obtaining funding for and repairing devices, andequipment exchange and recycling programs.
      
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