Any medical examination conducted by the employer's health professional must be job-related and consistent with business necessity. The medical information provided one year ago established the existence of a long-term impairment that substantially limits a major life activity. 1998). Pa. 1995) (employer on notice that accommodation had been requested because: (1) employee told supervisor that his pain prevented him from working and (2) employee had requested leave under the Family and Medical Leave Act). pt. 1998). (BNA) 1834, 1839 (11th Cir. 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. For more detailed information on issues raised by the interplay between these statutes, refer to the FMLA/ADA Fact Sheet listed in the Appendix. 1996); Schmidt v. Safeway Inc., 864 F. Supp. Similarly, employers frequently try to satisfy their rigorous obligations under the FEHA by attempting to complete the interactive process with a single short meeting or discussion with the . [see Question 42], if leave is the reasonable accommodation, is undue hardship based on the amount of leave requested? But, because the employee is also covered under the ADA, the employer cannot deny the request for the thirteenth week of leave unless it can show undue hardship. See 29 C.F.R. The interactive process may be triggered by any one or a combination of the following situations: Verbally or in writing by the disabled employee. reallocating or redistributing marginal job functions that an employee is unable to perform because of a disability; and. pt. 1630.2(o), (p) (1997); see also Senate Report, supra note 6, at 31-35; House Education and Labor Report, supra note 6, at 57-58. 791(g) (1994). The effect of the reasonable accommodation would be to alter when the group worked together and when they performed their individual assignments. If the employer does not know whether the employee is qualified for a specific position, the employer can discuss with the employee his/her qualifications.(88). (31) On the other hand, failure by the employer to initiate or participate in an informal dialogue with the individual after receiving a request for reasonable accommodation could result in liability for failure to provide a reasonable accommodation. explore the types of accommodations which would be most effective. 42 U.S.C. 77. Accordingly, counsel for the employee should take care that the employee participates in the communications surrounding a requested accommodation and provides sufficient explanation as to why any alternative accommodation is ineffective for the employees disability when an alternative accommodation is provided. On the other hand, attendance is relevant to job performance and employers need not grant all requests for a modified schedule. (98) Certain individuals require only one reasonable accommodation, while others may need more than one. This includes asking what type of reasonable accommodation is needed. If an employee, however, qualifies for leave under the Family and Medical Leave Act, an employer may not require him/her to remain on the job with an adjustment in lieu of taking leave. 1630.9 (1997). The employer must grant this request absent undue hardship. See Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 678, 7 AD Cas. A TTY is a device that permits individuals with hearing and speech impairments to communicate by telephone. 65. 1630.2(n) (1997). (See Question 6). A "reasonable amount of time" should be determined on a case-by-case basis considering relevant facts, such as whether the employer, based on experience, can anticipate that an appropriate position will become vacant within a short period of time. Thus, the employer does not have to provide training so that the employee acquires necessary skills to take a job. Thus, an employer cannot claim undue hardship solely because an employee can provide only an approximate date of return. Example B: An employee has been out of work for six months with a workers' compensation injury. 1630.2(m), 1630.2(o)(1997). (BNA) 924, 927 (6th Cir. 1630.2(p) (1997); TAM, supra note 49, at 3.9, 8 FEP Manual (BNA) 405:7005-07. If, however, the probationary employee has never adequately performed the essential functions, with or without reasonable accommodation, then s/he is not entitled to reassignment because s/he was never "qualified" for the original position. of Wis. Bd. (BNA) 1653, 1659 (5th Cir. A cost-benefit analysis assesses the cost of a reasonable accommodation in relation to the perceived benefit to the employer and the employee. 1630 app. The employee contacts the employer after three weeks of leave to ask for an additional ten to fourteen weeks of leave (i.e., a total of 18 to 22 weeks of leave). 1630 app. No. (116) In addition, the employer should determine whether it is eligible for certain tax credits or deductions to offset the cost of the accommodation. An employer may switch the marginal functions of two (or more) employees in order to restructure a job as a reasonable accommodation. Reassignment is the reasonable accommodation of last resort and is required only after it has been determined that: (1) there are no effective accommodations that will enable the employee to perform the essential functions of his/her current position, or (2) all other reasonable accommodations would impose an undue hardship. Therefore, the restaurant can deny the request for leave as a reasonable accommodation. The employee's doctor sends the employer a letter, stating that the employee is released to return to work, but with certain work restrictions. See 29 C.F.R. The process requires current and complete medical information and bilateral, good-faith communications." Allen v. 125. The First Circuit Court of Appeals issued a decision in December, 2014, that offers important guidance for employers and employees concerning the obligations of both parties during the "interactive process" under the Americans with Disabilities Act ("ADA"). Yes. (BNA) 219 (E.D. Is an employer's obligation to offer reassignment to a vacant position limited to those vacancies within an employee's office, branch, agency, department, facility, personnel system (if the employer has more than a single personnel system), or geographical area? 25. 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 return to his/her original position, then the employer must reassign the employee (absent undue hardship) to a vacant position for which s/he is qualified. See also Question 24, infra. See 42 U.S.C. An employer may require that the documentation about the disability and the functional limitations come from an appropriate health care or rehabilitation professional. See US Airways, Inc. v. Barnett, 535 U.S., 122 S. Ct. 1516, 1524-25 (2002). 1630 app. See Senate Report, supra note 6, at 36; House Education and Labor Report, supra note 6, at 69. The ADA requires employers to provide reasonable accommodations to individuals with disabilities, including reassignment, even though they are not available to others. (BNA) 434, 438 (D.C. Cir. Example A: An employee who is blind has adaptive equipment for his computer that integrates him into the network with other employees, thus allowing communication via electronic mail and access to the computer bulletin board. If the applicant replies that s/he needs a reasonable accommodation, the employer may inquire as to what type. . The psychiatrist's letter explained that during periods when the condition flared up, the person's manic moods or depressive episodes could be severe enough to create serious problems for the individual in caring for himself or working, and that medication controlled the frequency and severity of these episodes. 122. He attends numerous meetings to plan marketing strategies. 12111(9)(B) (1994); 29 C.F.R. Does an employer have to change a person's supervisor as a form of reasonable accommodation? 1630.15(b), (c) (1997). 37-38 and n.77. Does the charge involve allegations concerning reasonable accommodation and violations of any conduct rules? (100)Whether this accommodation is effective will depend on whether the essential functions of the position can be performed at home. at 1526. Example B: A day care worker requests that she be allowed to change her hours from 7:00 a.m. - 3:00 p.m. to 10:00 a.m. - 6:00 p.m. because of her disability. 42 U.S.C. But see Schmidt v. Safeway Inc., 864 F. Supp. In this instance, failure to provide the reader, absent undue hardship, would violate the ADA. May an employer tell other employees that an individual is receiving a reasonable accommodation when employees ask questions about a coworker with a disability? An employer does not have to provide a reasonable accommodation that would cause an "undue hardship" to the employer. The employer terminates the salesperson because she had fallen below the required performance standard. Does reassignment mean that the employee is permitted to compete for a vacant position? 29 C.F.R. pt. The duty to provide reasonable accommodation is a fundamental statutory requirement because of the nature of discrimination faced by individuals with disabilities. 103. (16) "Undue hardship" means significant difficulty or expense and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation. The employer must order this equipment and is informed that it will take three months to receive delivery. All examples used in this document assume that the applicant or employee has an ADA "disability.". (BNA) 1295, 1300 (S.D. [see Questions 34-35]. 74. If this employee is eligible for a modified schedule under the FMLA, the employer must provide the requested leave under that statute if it is medically necessary, even if the leave would be an undue hardship under the ADA. In a lawsuit, the plaintiff/employee bears the burden of proof to show the existence of "special circumstances" that warrant a jury's finding that a reassignment is "reasonable" despite the presence of a seniority system. Well do the technical back-end work, so no worries there. If, however, an employee needs a reasonable accommodation to perform an essential function or to eliminate a direct threat, and refuses to accept an effective accommodation, s/he may not be qualified to remain in the job.(39). (83)If it is unclear which position comes closest, the employer should consult with the employee about his/her preference before determining the position to which the employee will be reassigned. 1304, 1311-13, 6 AD Cas. pt. 1981a(a)(3) (1994). However, items that might otherwise be considered personal may be required as reasonable accommodations where they are specifically designed or required to meet job-related rather than personal needs. 2017) (finding a question of fact existed as to Issue 4). (BNA) 449, 457-58 (S.D.N.Y. 12111(10) (1994) (defining "undue hardship" based on factors assessing cost and difficulty). 63. Assuming there is more than one vacancy for which the employee is qualified, the employer must place the individual in the position that comes closest to the employee's current position in terms of pay, status, etc. The ADA specifically prohibits the disclosure of medical information except in certain limited situations, which do not include disclosure to coworkers.(111). See Criado v. IBM, 145 F.3d 437, 444-45, 8 AD Cas. For example, employees with disabilities may request reasonable accommodations to modify the work environment, such as changes to the ventilation system or relocation of a work space. (81) A position is considered vacant even if an employer has posted a notice or announcement seeking applications for that position. All Rights Reserved. Example C: An employee gives her employer a letter from her doctor, stating that the employee has asthma and needs the employer to provide her with an air filter. (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 application the consideration it deserves.). If not, the ADA requires the employer to reassign the employee if there is a vacant position available for which he is qualified, with or without reasonable accommodation, and there is no undue hardship. 1630.2(o) (1997). The store determines that such an arrangement will result in inadequate coverage to serve customers in a timely manner, keep the shelves stocked, and maintain store security. 83. The process requires current and complete medical information and bilateral, good-faith communications. Allen v. City of Raleigh, 140 F.Supp.3d 470, 490 (E.D.N.C. See the Appendix. If the employee is qualified for that position, the employer must offer it to him. If the owner refuses to allow the employer to make the modifications, the employer may claim undue hardship. Therefore, the employer can request additional documentation. But do so at your perilinvesting in talent management, or the way that your organization attracts, retains, and develops its employees (sometimes referred to as "talent" or "human capital") can give your company an edge. There are no reasonable accommodations that would permit the individual to perform the essential functions of the position, so the individual requests a reassignment. See Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 700, 8 AD Cas. 98. See 29 C.F.R. Example B: An employer authorizes the Human Resources Director to use a public address system to remind employees about special meetings and to make certain announcements. 6. Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business. See Wood v. County of Alameda, 5 AD Cas. 12112(b)(2) (1994); 29 C.F.R. 720, 735, 5 AD Cas. See Gile v. United Airlines, Inc., 95 F.3d 492, 499, 5 AD Cas. 99. 825.203 (1997). (69) An employer always must maintain the employee's existing level of coverage under a group health plan during the period of FMLA leave, provided the employee pays his/her share of the premium.(70). 1630.9 (1997). Example A: An employer is impressed with an applicant's resume and contacts the individual to come in for an interview. The whistleblower connected to the Hunter Biden tax investigation said he became so concerned about prosecutors' handling of the investigation, he felt duty-bound to report it. It is a reasonable accommodation to modify a workplace policy when necessitated by an individual's disability-related limitations,(71) absent undue hardship. While an individual with a disability may request a change due to a medical condition, this request does not necessarily mean that the employer is required to provide the change. (BNA) 336, 341 (1st Cir. He notifies his employer that he is ready to return to work, but he no longer is able to perform the essential functions of his position or an equivalent position. Such information could be delivered in orientation materials, employee handbooks, notices accompanying paystubs, and posted flyers. The employer can request documentation that the retinopathy is related to the diabetes but the employee does not have to show that the retinopathy is an independent disability under the ADA. There are several modifications or adjustments that are not considered forms of reasonable accommodation. The Maubach court recently observed, [a]lthough the Fourth Circuit has not issued a published opinion addressing the obligation of employeeas opposed to an employerto engage in the interactive process, the Fourth Circuits unpublished Crabill decision and multiple circuit courts in published opinions have held that an employer cannot be held liable under the ADA where it is the employee who refuses to engage in, or who causes the breakdown of, the requisite interactive process to determine a reasonable accommodation.Maubach v. City of Fairfax, 2018 WL 2018552 (E.D. Are there situations in which an employer cannot ask for documentation in response to a request for reasonable accommodation? 113. No. Ctr., 156 F.3d 1284, 1304-05, 8 AD Cas. (BNA) 1141, 1146-47 (D. Or. These include: A modification or adjustment is "reasonable" if it "seems reasonable on its face, i.e., ordinarily or in the run of cases;"(8) this means it is "reasonable" if it appears to be "feasible" or "plausible. 1998). 24. 1998); see also ADA and Psychiatric Disabilities, supra note 27, at 27-28, 8 FEP Manual (BNA) 405:7475. Example B: An employee, as a result of insulin-dependent diabetes, has developed background retinopathy (a vision impairment). 4. For information on how reassignment may apply to employers who provide light duty positions, see Workers' Compensation and the ADA, supra note 52, at 20-23, 8 FEP Manual (BNA) 405:7401-03. Does an employer have to notify an employee with a disability about vacant positions, or is it the employee's responsibility to learn what jobs are vacant? Example B: An employer is considering reassigning an employee with a disability to a position in which she will contract for goods and services. (BNA) 1340, 1342 (7th Cir. However, if an employee with a disability, with or without reasonable accommodation, cannot perform the essential functions of the position or poses a direct threat in the absence of medication, treatment, or an assistive device, then s/he is unqualified. See Senate Report, supra note 6, at 31 ("If an employee, because of disability, can no longer perform the essential functions of the job that she or he has held, a transfer to another vacant job for which the person is qualified may prevent the employee from being out of work and the employer from losing a valuable worker."). They also appear to be effective because they would enable him to perform his cleaning duties. 1630.2(n)(2) (1997). The employee need not mention the ADA or even the term 'accommodation.'"). The employer grants the request. (86)If an employee is being reassigned to a different geographical area, the employee must pay for any relocation expenses unless the employer routinely pays such expenses when granting voluntary transfers to other employees. Most employers are well aware that the Americans with Disabilities Act (and similar state laws) require employers to engage in the "interactive process" when an employee requests a disability accommodation. 42 U.S.C. Does an employer have to provide a reasonable accommodation to an applicant with a disability even if it believes that it will be unable to provide this individual with a reasonable accommodation on the job? 1515, 1518 (N.D. Tex. See Criado v. IBM, 145 F.3d 437, 444-45, 8 AD Cas. The employer does not have to provide a reassignment (even if there is a vacant position) because, as it turns out, the individual was never qualified -- i.e., the individual was never able to perform the essential functions of the position, with or without reasonable accommodation, for which he was hired. For example, it would be a reasonable accommodation to modify a policy requiring employees to schedule vacation time in advance if an otherwise qualified individual with a disability needed to use accrued vacation time on an unscheduled basis because of disability- related medical problems, barring undue hardship. Refusing to consider alternative accommodations offered by management. (BNA) 875, 887 (7th Cir. For Deaf/Hard of Hearing callers: Although many individuals with disabilities can apply for and perform jobs without any reasonable accommodations, there are workplace barriers that keep others from performing jobs which they could do with some form of accommodation. See Question 12, supra, for the circumstances under which an employer may ask an applicant whether s/he will need reasonable accommodation to perform specific job functions. 88. 1630.2(o), 1630.9 (1997); see also Haschmann v. Time Warner Entertainment Co., 151 F.3d 591, 601, 8 AD Cas. "); see also 42 U.S.C. The documentation provided at that time from the employee's psychiatrist indicated that this was a permanent condition which would always involve periods in which the disability would remit and then intensify. pt. 29. (BNA) 1872, 1880-81 (7th Cir. 1630.2(o) (1997). See 42 U.S.C. Assuming no undue hardship would result, the supervisor must make this reasonable accommodation. (Gov. But cf. X Corp. requests that Z Co. allow it to make the changes, but Z Co. denies the request. The release should be clear as to what information will be requested. An employer must provide a modified or part-time schedule when required as a reasonable accommodation, absent undue hardship, even if it does not provide such schedules for other employees.(64). [see Question 43], if there are "special circumstances" that would make it "reasonable" to reassign the Charging Party, despite the apparent conflict with a seniority system, would it nonetheless be an undue hardship to make the reassignment? Va. 2018). The employer must reassign the individual to a vacant position that is equivalent in terms of pay, status, or other relevant factors (e.g., benefits, geographical location) if the employee is qualified for the position. The "plaintiff/employee (to defeat a 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 cases. Example B: A cashier easily becomes fatigued because of lupus and, as a result, has difficulty making it through her shift. An employee regularly misses work, telling the employer that he/she is ill (may be eligible for FMLA). When the employee is ready to return to work, the employer must allow the individual to return to the same position (assuming that there was no undue hardship in holding it open) if the employee is still qualified (i.e., the employee can perform the essential functions of the position with or without reasonable accommodation). (BNA) 576 (2d Cir. the nature and cost of the accommodation needed; the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility; the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity); the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer; the impact of the accommodation on the operation of the facility. See id. 1998) (employer's methodology to determine if reassignment is appropriate does not constitute the "interactive process" contemplated by the ADA if it is directive rather than interactive); Mengine v. Runyon, 114 F.3d 415, 419-20, 6 AD Cas. 48. The discussions and examples in this section assume that there is only one effective accommodation. pt. 12111(9)(B) (1994); 29 C.F.R. 119. Furthermore, the letter does not identify precisely what problem exists in the workplace that requires an air filter or any other reasonable accommodation. How employers can avoid litigation through reasonable accommodation September 27, 2022. An employer should respond expeditiously to a request for reasonable accommodation. See Den Hartog v. Wasatch Academy, 129 F.3d 1076, 1084, 7 AD Cas. Is it a reasonable accommodation to modify a workplace policy? Must an employer provide a reasonable accommodation that is needed because of the side effects of medication or treatment related to the disability, or because of symptoms or other medical conditions resulting from the underlying disability? 1-844-234-5122 (ASL Video Phone) The Guidance also covers different types of reasonable accommodations related to job performance, including job restructuring, leave, modified or part-time schedules, modified workplace policies, and reassignment. Nor is an employer required to lower production standards -- whether qualitative or quantitative(14) -- that are applied uniformly to employees with and without disabilities. Our guide covers everything you . The employer asks the employee about mixing up the two names and asks if it would be helpful to spell the first name of each person. 1. (BNA) 875, 882 (7th Cir. A lock ( See, e.g., Carr v. Reno, 23 F.3d 525, 530, 3 AD Cas. Since the retinopathy is a consequence of the diabetes (an ADA disability), the request must be granted unless undue hardship can be shown. 1994) (employer had obligation to provide reasonable accommodation because it knew of the employee's alcohol problem and had reason to believe that an accommodation would permit the employee to perform the job). See 29 C.F.R. 1996); Gile v. United Airlines, Inc., 95 F.3d 492, 499, 5 AD Cas. Under the FMLA, an eligible employee is entitled to a maximum of 12 weeks of leave per 12 month period. (40), After a conditional offer of employment is extended, an employer may inquire whether applicants will need reasonable accommodations related to anything connected with the job (i.e., job performance or access to benefits/privileges of the job) as long as all entering employees in the same job category are asked this question. If there is no vacant equivalent position, the employer must reassign the employee to a vacant lower level position for which the individual is qualified. No. (BNA) 1326, 1335 n.10 (6th Cir. Penalizing the salesperson in this manner constitutes retaliation and a denial of reasonable accommodation. 42 U.S.C. An official website of the United States government. In addition to barring workplace disability discrimination, the ADA also imposes an affirmative obligation on employers to provide whatever reasonable accommodations are necessary, to the point of undue hardship, to enable an individual with a disability to (1) access the employer's hiring and selection process on a nondiscriminatory basis (i.e . Was there a nexus between the reasonable accommodation requested and the functional limitations resulting from the Charging Party's disability? The employee requests as a reasonable accommodation that several room dividers be moved to make his work space easily accessible. 32. However, an employer should initiate the reasonable accommodation interactive process(109) 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 experiencing workplace problems because of the disability, and (3) knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation. Since the employer cannot modify her hours, it must consider whether it can reassign her to a different position. See 42 U.S.C. (BNA) 1530, 1534 (3d Cir. Example: A cleaning crew works in an office building. The EEOC's guidance provides that "an employer should initiate the reasonable accommodation interactive process without being asked if the employer (1) knows that he employee has a disability, (2) knows, or has reason to know, that the employee is experiencing workplace problems because of the disability, and (3) knows, or has reason to know, th. The ADA and the MHRA require employers to provide reasonable accommodations to employees with disabilities. In certain situations, an employee may be able to provide only an approximate date of return. 991, 997, 3 AD Cas. (BNA) 987, 990 (E.D. No other company sells the adaptive equipment the employee needs. If, as a reasonable accommodation, an employer restructures an employee's job to eliminate some marginal functions, may the employer require the employee to take on other marginal functions that s/he can perform? Is an employer relieved of its obligation to provide reasonable accommodation for an employee with a disability who fails to take medication, to obtain medical treatment, or to use an assistive device (such as a hearing aid)? In addition, the EEOC has published a great deal of basic information about reasonable accommodation and undue hardship. Thus, the employer can show undue hardship based on the significant disruption to its operations and, therefore, can refuse to reduce the employee's hours. 38. If there are two possible reasonable accommodations, and one costs more or is more burdensome than the other, the employer may choose the less expensive or burdensome accommodation as long as it is effective (i.e., it would remove a workplace barrier, thereby providing the individual with an equal opportunity to apply for a position, to perform the essential functions of a position, or to gain equal access to a benefit or privilege of employment). The Guidance discusses reasonable accommodations applicable to the hiring process and to the benefits and privileges of employment. First, and most obviously, the obligation arises when an employee requests accommodation. 1995). See 136 Cong. Employers should remember that many employees eligible for FMLA leave will not be entitled to leave as a reasonable accommodation under the ADA, either because they do not meet the ADA's definition of disability or, if they do have an ADA disability, the need for leave is unrelated to that disability. 54. 70. 101-485, pt. 1630 app. See Ralph v. Lucent Technologies, Inc., 135 F.3d 166, 171, 7 AD Cas. Example A: An employee with emphysema requests ten weeks of leave for surgery and recuperation related to his disability. Now, one year later, the employee again requests a reasonable accommodation related to his bipolar disorder. 11069(b).) (BNA) 764, 772 (10th Cir. Must an employer offer reassignment as a reasonable accommodation if it does not allow any of its employees to transfer from one position to another? 1630.14(b) (1997); Preemployment Questions and Medical Examinations, supra note 27, at 23, 8 FEP Manual (BNA) 405:7201; Workers' Compensation and the ADA, supra note 52, at 7, 8 FEP Manual (BNA) 405:7394. (BNA) 304 (7th Cir. One member of the crew wears a prosthetic leg which enables him to walk very well, but climbing steps is painful and difficult. Thus, if non- disabled part-time workers are not provided with health insurance, then the employer does not have to provide such coverage to an employee with a disability who is given a part-time schedule as a reasonable accommodation. An employer has an obligation to reasonably accommodate an employee's known physical or mental disability unless undue hardship will result. 110. See, e.g., Daugherty v. City of El Paso, 56 F.3d 695, 700, 4 AD Cas. One crew member has a psychiatric disability. Example B: Company X is having a reduction-in-force. 14. [see Questions 16-24, 32-33], in order to enjoy the benefits and privileges of employment? if a modified schedule or leave is the reasonable accommodation, is undue hardship based on the impact on the ability of other employees to do their jobs? 1996). Since neither the disability nor the need for accommodation are obvious, the supervisor may ask the employee for reasonable documentation about his impairment; the nature, severity, and duration of the impairment; the activity or activities that the impairment limits; and the extent to which the impairment limits the employee's ability to perform the activity or activities. did the Respondent have any vacant positions? Additionally, suggestions from the individual with a disability may assist the employer in determining the type of reasonable accommodation to provide. (BNA) 1653, 1660 (5th Cir. A disability can be a physical condition or a mental impairment. Despite the statutory language and legislative history, some courts have applied a cost-benefit analysis. pt. Corp., 90 F.3d 1173, 1184 n.10, 5 AD Cas. (49) For example, if employees get 10 days of paid leave, and an employee with a disability needs 15 days of leave, the employer should allow the individual to use 10 days of paid leave and 5 days of unpaid leave. 1996). See Question 26, supra. The ADA's definition of undue hardship does not include any consideration of a cost-benefit analysis. 7. 1630 app. 1630.2(o) (1997). In Jakubowski v. Christ Hosp., Inc., --- F.3d --- (6th Cir. If an employer has provided one reasonable accommodation, does it have to provide additional reasonable accommodations requested by an individual with a disability? 1997) (an employer has a duty to make reasonable efforts to assist an employee in identifying a vacancy because an employee will not have the ability or resources to identify a vacant position absent participation by the employer); Woodman v. Runyon, 132 F.3d 1330, 1344, 7 AD Cas. In the ADA Interactive Process, employers have an obligation to work with their employee. 2, at 65 (1990) [hereinafter House Education and Labor Report]; S. Rep. No. If an employee with a disability needs additional unpaid leave as a reasonable accommodation, the employer must modify its "no-fault" leave policy to provide the employee with the additional leave, unless it can show that: (1) there is another effective accommodation that would enable the person to perform the essential functions of his/her position, or (2) granting additional leave would cause an undue hardship. 1630.15(d) (1996); see also Stone v. Mount Vernon, 118 F.3d 92, 101, 6 AD Cas. (85) Rather, the extent to which an employer must search for a vacant position will be an issue of undue hardship. These notices, which must be in an accessible format, are available from the EEOC. See, e.g., Whillock v. Delta Air Lines, 926 F. Supp. During surgery, serious complications arise that require a lengthier period of recuperation than originally anticipated, as well as additional surgery. 1998). An employer should remember its obligation to make reasonable accommodation when it is negotiating contracts with property owners. Is an employer required to provide the reasonable accommodation that the individual wants? of Wis. Bd. pt. 12111(9)(B) (1994); 29 C.F.R. 1630.2(o)(2)(ii) (1997). Where the individual or the employer are not familiar with possible accommodations, there are extensive public and private resources to help the employer identify reasonable accommodations once the specific limitations and workplace barriers have been ascertained.(26). 12111(10) (1994); see also House Education and Labor Report, supra note 6, at 69 ("[T]he committee wishes to make clear that the fact that an accommodation is used by only one employee should not be used as a negative factor counting in favor of a finding of undue hardship."). Furthermore, an employer is not required to provide personal use amenities, such as a hot pot or refrigerator, if those items are not provided to employees without disabilities. Depending on the results of the blood test, the employee might have to take insulin. An employee requires a reassignment only if s/he is unable to continue performing the essential functions of his/her current position, with or without reasonable accommodation. 1630.9 (1997); see also House Judiciary Report, supra note 6, at 39; House Education and Labor Report, supra note 6, at 65; Senate Report, supra note 6, at 34. If a charge is filed, records must be preserved until the charge is resolved. 1997) (an employee who, because of a heart attack, missed several months of work and returned on a part-time basis until health permitted him to work full-time, could be terminated during a RIF based on his lower productivity). (102)Since reasonable accommodation is always prospective, an employer is not required to excuse past misconduct even if it is the result of the individual's disability. 1630 app. This Enforcement Guidance clarifies the rights and responsibilities of employers and individuals with disabilities regarding reasonable accommodation and undue hardship. 104. This Guidance sets forth an employer's legal obligations regarding reasonable accommodation; however, employers may provide more than the law requires. was the Charging Party qualified for a vacant position? (5) Reasonable accommodations must be provided to qualified employees regardless of whether they work part- time or full-time, or are considered "probationary." The employee has had significant difficulty adjusting to the monthly changes in floor assignments. Example B: A convenience store clerk with multiple sclerosis requests that he be allowed to go from working full-time to part- time as a reasonable accommodation because of his disability. 111. For example, "special circumstances" may exist where an employer retains the right to alter the seniority system unilaterally, and has exercised that right fairly frequently, thereby lowering employee expectations in the seniority system. 1996 ) ; 29 C.F.R ( p ) ( 2 ) ( 1997 ) ; Gile United! Require only one reasonable accommodation to provide a reasonable accommodation, the employer must grant this request undue! Crew works in an accessible format, are available from the Charging Party 's?! Recuperation than originally anticipated, as a result of insulin-dependent diabetes, has difficulty it... Letter does not include any consideration of a cost-benefit analysis assesses the cost of a reasonable.. Leave as a reasonable accommodation, while others may need more than one F.3d,. The Guidance discusses reasonable accommodations requested by an individual is receiving a reasonable accommodation, the EEOC has a! Of Raleigh, 140 F.Supp.3d 470, 490 ( E.D.N.C, is undue hardship does not have to take.... The required performance standard, 156 F.3d 1284, 1304-05, 8 AD.! To modify a workplace policy a workers interactive process employee obligations compensation injury mention the ADA Interactive process employers... Take insulin the law requires accommodation would be to alter when the group worked together and when they performed individual..., 122 S. Ct. 1516, 1524-25 ( 2002 ) 1076,,!, 678, 7 AD Cas this manner constitutes retaliation and a denial of reasonable accommodation and undue hardship would. For six months with a disability x is having a reduction-in-force a lengthier period of recuperation originally! And responsibilities of employers and individuals with disabilities a cleaning crew works in an accessible,. The blood test, the employer can not ask for documentation in response to request. V. 125 12 month period ADA Interactive process, employers have an obligation to make his work space accessible! Additional surgery well as additional surgery is it a reasonable accommodation, it must consider whether can..., would violate the ADA 's definition of undue hardship does not have to change a 's. Sheet listed in the Appendix Certain individuals require only one effective accommodation to! Fatigued because of the blood test, the restaurant can deny the request 90 F.3d,. Exists in the Appendix v. County of Alameda, 5 AD Cas when they performed their individual assignments )... Documentation in response to a maximum of 12 weeks of leave per 12 month period the workplace that requires air. Attendance is relevant to job performance and employers need not grant all requests for a vacant position will be.. Could be delivered in orientation materials, employee handbooks, notices accompanying paystubs and. House Education and Labor Report ] ; S. Rep. no accommodation ; however, employers have an obligation to the... Months with a disability individuals require only one reasonable accommodation related to his disorder. A prosthetic leg which enables him to perform his cleaning duties, Whillock Delta. At home be to alter when the group worked together and when they performed individual. Fact existed as to Issue 4 ) with emphysema requests ten weeks leave. Quot ; Allen v. City of El Paso, 56 F.3d 695, 700, AD. - F.3d -- - ( 6th Cir any medical examination conducted by the employer order... The letter does not have to provide the reader, absent undue hardship 9 ) ( B ) ( )., Daugherty v. City of interactive process employee obligations, 140 F.Supp.3d 470, 490 ( E.D.N.C telling the employer claim... Most effective Lucent Technologies, Inc. v. Barnett, 535 U.S., 122 Ct.. May claim undue hardship, would violate the ADA or even the term 'accommodation. ' '' ) or. 1284, 1304-05, 8 AD Cas with disabilities regarding reasonable accommodation to modify a workplace policy 437! Not include any consideration of a reasonable accommodation to interactive process employee obligations training so that the employee is for. 1084, 7 AD Cas several modifications or adjustments that are not available to others available. Would result, has developed background retinopathy ( a ) ( 1994 ) 29... Results of the reasonable accommodation requested and the functional limitations resulting from EEOC! Months to receive delivery other company sells the adaptive equipment the employee need not mention the ADA and the require. Fmla ) require only one reasonable accommodation that several room dividers be moved to make the changes, but steps... Provide additional reasonable accommodations to individuals with disabilities regarding reasonable accommodation is needed FEP... 27, 2022 leave requested 438 ( D.C. Cir employers need not grant all requests for a modified.... A denial of reasonable accommodation requested and the functional limitations resulting from the Charging Party 's?. O ) ( 1994 ) 2002 ) of discrimination faced by individuals with disabilities, including,. To the employer 's health professional must be job-related and consistent with business necessity amount of leave per 12 period. That position, the extent to which an employer should remember its to! The benefits and privileges of employment, so no worries there would result, has developed background retinopathy ( )! Employees that an employee requests accommodation employers may provide more than the law requires may switch marginal! A mental impairment require that the applicant replies that s/he needs a reasonable accommodation to reasonable... ; House Education and Labor Report ] ; S. Rep. no had fallen below the required standard... Making it through her shift 1981a ( a vision impairment ) air filter or any other reasonable accommodation that employee... Fatigued because of a disability ; and ) employees in order to a! Den Hartog v. Wasatch Academy, 129 F.3d 1076, 1084, AD! Guidance sets forth an employer may inquire as to Issue 4 ) posted.... Leave for surgery and recuperation related to his disability. `` steps painful! Mhra require employers to provide training so that the individual to come in for an interview discussions and in. Marginal functions of the position can be a physical condition or a mental impairment serious arise. 95 F.3d 492, 499, 5 AD Cas and most obviously, the EEOC has published a great of... A job as a form of reasonable accommodation to modify a workplace policy such information could delivered... 525, 530, 3 AD Cas F. Supp violate the ADA 's definition of undue hardship at... Functions that an individual with a disability can be a physical condition or a mental impairment to! Information about reasonable accommodation that the employee disability and the MHRA require employers to provide the accommodation. Crew wears a prosthetic leg which enables him to perform because of lupus and, as well as surgery... See Senate Report, supra note 49, at 69 effective accommodation US Airways,,... Has been out of work for six months with a workers ' compensation injury the medical information and bilateral good-faith! That s/he needs a reasonable accommodation and is informed that it will take three months to receive delivery all for. Such information could be delivered in orientation materials, employee handbooks, notices accompanying paystubs, and posted flyers v...., at 65 ( 1990 ) [ hereinafter House Education and Labor Report ] ; S. Rep. no in. House Education and Labor Report ] ; S. Rep. no not ask for documentation in response to maximum! Employer 's health professional must be job-related and consistent with business necessity ADA requires employers to provide the reader absent... 65 ( 1990 ) [ hereinafter House Education and Labor Report, supra note 49, at 3.9, FEP! The supervisor must make this reasonable accommodation is effective will depend on whether the essential functions two... ; S. Rep. no or even the term 'accommodation. ' '' ) would an! Must make this reasonable accommodation to provide additional reasonable accommodations to employees with disabilities however, employers have an to! Hardship '' based on factors assessing cost and difficulty ) one year later the! Been out of work for six months with a disability search for a vacant position Excel,. ; Schmidt v. Safeway Inc., 95 F.3d 492, 499, 5 AD Cas 1076, 1084, AD. For surgery and recuperation related to his bipolar disorder cashier easily becomes because... Functions of two ( or more ) employees in order to enjoy the benefits and privileges employment... Marginal functions of two ( or more ) employees in order to restructure a job be for. They performed their individual assignments is negotiating contracts with property owners she had fallen below the required performance.... Reasonable accommodations requested by an individual with a disability that he/she is (! Forms of reasonable accommodation, 140 F.Supp.3d 470, 490 ( E.D.N.C leave is the reasonable accommodation to! Terminates the salesperson because she had fallen below the required performance standard order to restructure a job as result! Switch the marginal functions of the crew wears a prosthetic leg which enables him to because... Which an employer tell other employees that an employee may be able to provide additional reasonable accommodations to with... Rights and responsibilities of employers and individuals with disabilities regarding reasonable accommodation that the individual with a '! Grant all requests for a vacant position 's supervisor as a result of insulin-dependent diabetes, developed. 887 ( 7th Cir, 7 AD Cas and examples in this manner constitutes retaliation and a denial reasonable... Individual to come in for an interview, so no worries there F.3d 525, 530 3... A charge is filed, records must be in an accessible format, are available from the Charging qualified... Academy, 129 F.3d 1076, 1084, 7 AD Cas this Enforcement clarifies. Has an ADA `` disability. `` rehabilitation professional a: an employee requests.... Ten weeks of leave for surgery and recuperation related to his disability ``! Individuals require only one reasonable accommodation, the letter does not include any consideration of a cost-benefit.... V. County of Alameda, 5 AD Cas to perform because of the reasonable accommodation employee requests accommodation v. Technologies. Violations of any conduct rules restaurant can deny the request in Jakubowski v. Hosp..
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