Disability Discrimination & ADA Compliance Frequently Asked Questions
A reasonable accommodation is any modification or adjustment to a job or the work environment that will enable an otherwise qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. It also includes adjustments to assure that an individual with a disability has the same rights and privileges in employment as non-disabled employees.
A workplace accommodation may be requested by an applicant or an employee with a disability at any time. After initiating the accommodation process, the individual and the employer should discuss the request. There are several considerations when determining reasonable accommodation requests, including the demands of the job, the employee's skills and functional limitations, available technology, and cost. After both parties agree that a workplace accommodation is needed, an appropriate one must be selected.
The individual must let you know that he or she needs an adjustment or change at work for a reason related to a medical condition. The individual may use plain language and need not mention the ADA or use the phrase "reasonable accommodation." Requests do not need to be in writing, though you may choose to write a memorandum or letter confirming the request.
Yes, if the need for the accommodation is not obvious, the meployer may ask an employee for reasonable documentation about his or her disability and functional limitations. You are entitled to know that the employee has a disability for which he or she needs an accommodation.
You are, however, entitled only to documentation sufficient to establish that the employee's medical condition is a disability and that explains why an accommodation is needed. The provisions of the Genetic Information Nondiscrimination Act also apply.
There are basically six steps in the interactive process:
Recognize a request for an accommodation
Employees need not utter "ADA" or "accommodation" for a request to be valid. Whenever an employee requests a work-related change or indicates that he or she is having problems performing the job for a reason related to a medical condition, this is a reasonable accommodation request. For example, a doctor's note which indicates a work restriction should be considered a request for accommodation. If you are not sure whether an employee is asking for an accommodation, ask the employee to clarify what is being requested and why.
Gather information
A simple discussion between you (as the employer) and the employee can go a long way. The discussion should focus on the employee's limitations in regard to the essential job functions, any barriers keeping the employee from performing the functions, and ideas that could help remove those barriers. The employee may have some ideas as to what accommodations would be effective. This discussion is best done in person, but may be done via other methods such as phone conversations or even emails.
If the disability or need for accommodation is not obvious, you may ask for reasonable documentation to help determine whether the employee needs the requested accommodation and perhaps even some help as to possible accommodations. If the disability and need for accommodation are obvious, the discussion may be very short or even unnecessary.
Explore accommodation ideas
When you are aware of the limitations, you can start exploring accommodation ideas. Go into this with an open mind. Often employers foreclose exploration by thinking only that they have no alternative jobs the employee can perform. Accommodations can be very creative. Sources of ideas beyond the employee can include medical professionals, disability-related organizations, and the Job Accommodation Network (askjan.org).
Choose an accommodation
After amassing some ideas, it's time to choose one. Generally, you may make the choice. You should consider the employee's choice, but if another accommodation will be effective and cost less or be less disruptive, the decision is yours to make. One in a while, a specific accommodation may, however, be medically necessary.
Implement the accommodation
Once an accommodation is chosen, put it into action. Install equipment properly and provide for any needed training. Make a change to a policy or schedule, and inform the appropriate people. Reassign the employee to a new job and allow him to become accustomed to it. Do not delay in the implementation, as doing so may be seen as a form of discrimination.
Monitor the accommodation
You may find that after an initial test period, the accommodation does not work as well as expected. Therefore, you may need to continue looking for ideas. Whichever accommodation is chosen, it needs to be effective.
Alternatively, an employee's limitations may change (for better or worse). The workplace may change (such as increased for decreased staffing levels). The job duties or responsibilities may change. Such changes can affect the accommodation's effectiveness. Periodically check to make sure the accommodation is still working and the employee is not experiencing any further problems.
Currently, there is no specific time limit for leave that would be considered a reasonable accommodation. Employers are to provide accommodations that do not pose an undue hardship. If a certain period of leave would not pose an undue hardship, it should be provided. Unlimited time off is not currently considered reasonable.
Note: The Seventh Circuit Court of Appeals has ruled that extended leave is not a reasonable accommodation under the ADA. Brief periods of time, however, can be. The U.S. Supreme Court chose not to review the case, so the Seventh Circuit ruling stands. The ruling is in opposition to rulings in other circuits, and to the Equal Employment Opportunity Commission.
The Seventh Circuit includes the states of Wisconsin, Illinois, and Indiana.
An "undue hardship" is an action requiring significant difficulty or expense when considered in light of a number of factors, including the nature and cost of the accommodation in relation to the size, resources, nature, and structure of an employer's operation.
Under the Americans with Disabilities Act (ADA), questionnaires, applications, medical examinations, and tests are often used by employers to determine the qualifications of the applicant. Keep in mind that, at the pre-offer stage, disability-related questions and medical examinations are prohibited.
Develop a thorough job description that identifies the essential elements of the job. By relying on this description, both the interviewer and applicant are aware of the essential elements of the job. Employers should also review old application forms to ensure that medical histories are not requested, since this is no longer appropriate. Restrict pre-employment medical inquiries to post-offer. See "May I conduct an employment physical" question.
No. The only time an employer may make medical inquiries (or require medical exams) of employees, is when it is job related and consistent with business necessity. Generally, this means you have a reasonable belief, based on objective evidence, that a particular employee (as opposed to all employees) is unable to perform an essential function or will pose a direct threat because of a medical condition.
The ADA permits an employer to refuse to hire an individual if he or she poses a direct threat to the health or safety of the individual or others. A direct threat means a significant risk of substantial harm. The determination that there is a direct threat must be based on objective, factual evidence regarding an individual's present ability to perform essential job functions. You cannot refuse to hire someone because of a slightly increased risk or because of fears that there might be a significant risk sometime in the future. You must also consider whether the risk can be eliminated or reduced to an acceptable level with a reasonable accommodation.
The law permits a medical examination if it is conducted after an offer of employment has been made. However, if physicals are conducted, they must be conducted for all employees in that job category and the medical information gathered must be kept separate from the personnel file. The exam must be job-related and consistent with business necessity. Drug testing is not considered a "medical examination" under the law. Therefore, pre-employment tests for illegal drug use are permitted by the ADA.
No. The only time an employer may make medical inquiries (or require medical exams) of employees, is when it is job related and consistent with business necessity. Generally, this means you have a reasonable belief, based on objective evidence, that a particular employee (as opposed to all employees) is unable to perform an essential function or will pose a direct threat because of a medical condition.
The number depends upon how many total parking spots the employer has.