By Jason Guinasso, Special to bizNEVADA
Over the last year, our firm has fielded a number of questions from employers regarding what their obligation to provide “reasonable accommodations” to individuals with disabilities. The answers lie within the Americans with Disabilities Act (ADA), as amended by the ADA Amendments Act of 2008.
The most common question we get regarding the ADA is a variation of this one, “My employee has requested that we accommodate his permanent work restrictions, what must we do to respond to the employee’s request?”
The ADA prohibits employers with 15 or more employees from discriminating against a qualified individual with a disability. The ADA protects qualified individuals from discrimination on the basis of disability in all aspects of the employment process, including recruitment, hiring, rates of pay, upgrading, and selection for training. The ADA also requires a covered employer to reasonably accommodate a qualified individual unless it can show that by doing so it would suffer an 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. A reasonable accommodation removes workplace barriers for individuals with disabilities.
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 called “the interactive process” to clarify the individual’s 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.
The purpose of the interactive process is to determine whether—for employees who, due to a disability, have limitations that prevent them from performing the critical elements of their job—a reasonable accommodation exists which will allow them to be able to perform the critical elements of their job.
The following are the six specific questions which the Interactive Process is designed to answer:
- Does the employee have a disability with which the Americans with Disabilities Act requires the employer to accommodate?
- What are the critical, (as opposed to the non-critical) elements of the employee’s job?
- Does the employee have limitations that result from his/her disability? If so, what are those limitations?
- Do those limitations interfere with the employee’s ability to perform the critical elements of her/his job?
- Is there a reasonable accommodation which the employer can provide which would allow the employee to perform those critical elements of his/her job?
- If so, what is that accommodation?
If the employee requests an accommodation, the employee need not use the magic words, “reasonable accommodation” in the request. If an employee says that she/he has a limitation or restriction, treat it as a request for an accommodation. The request need not be in writing. Also, it may come from a family member. If the employee does not request an accommodation, but you have knowledge that would put a reasonable person on notice that the employee needs an accommodation, you must begin the Interactive Process.
During the Interactive Process, an employer must, at a minimum:
- Analyze the employee’s job and determine its purpose and essential functions;
- Consult with the employee to ascertain the precise job-related limitations imposed by their disability, and how a reasonable accommodation might address those limitations;
- Identify potential accommodations and discuss them with the employee; and,
- Select the most appropriate accommodation(s) considering the employee in question.
Importantly, employers are prohibited from compelling an employee to identify an accommodation and cannot impose an accommodation upon an employee even if it is believed that the employee needs such. While their input is taken into consideration, the employee and medical provider are not to choose the accommodation. Moreover, the employer is also not obligated to provide the employee’s preferred accommodation. The employer may discuss the accommodation with the employee and provide an alternative accommodation that is reasonable, and which allows the employee to perform the critical element of her/his job.
Finally, it should be noted that few jobs, work environments, and/or disabling conditions, are entirely static; therefore no grant or denial of an accommodation is eternal. Thus, neither the reasonable accommodation nor the interactive process obligations of the employer are satisfied by a one-time participation in the process. The Interactive Process is for that reason, both open and ongoing, and an employer does not meet its obligation to engage in the Interactive Process by simply considering and rejecting the employee’s suggestions for are reasonable accommodation. Both supervisor and employee must continue to be open to monitoring, reviewing, modifying, or even terminating an accommodation based upon the experience of how it has worked in the past or is working in the present in light of changed circumstances either in the workplace or with the employee. Each request should be considered on its own merit.
All that being said, employers never have to provide any reasonable accommodation under the ADA that causes undue hardship to the company. In general, the term “undue hardship”; means an action requiring significant difficulty or expense. The ADA 42 USCS ß 12111(10) contains a detailed set of criteria to consider in determining what constitutes an “undue hardship”, including:
- The nature and cost of the accommodation needed under this Act;
- The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;
- The overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and
- The type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.
Under 42 USCS ß 12111(10)(B), the question of whether an accommodation, such are assignment, will constitute an “undue hardship” is not addressed by focusing on the actual cost of any one particular accommodation; rather the focus is on the financial impact of a given accommodation on the entire budget of the business. Accommodations must be considered on a case-by-case basis weighing the nature and extent of a disabling condition and the requirements of the job. See, e.g., Humphrey v. Memorial Hospitals Assoc., 239 F.3d 1128,1135-37 (9th Cir. 2001).”
In closing, after reading this article, you have questions about providing reasonable accommodations to an employee with a disability and/or the “interactive process,” please contact us at Hutchison & Steffen.
Jason D. Guinasso, Esq., is the Managing Partner of the Northern Nevada Offices of Hutchison & Steffen. His primary practice area is Employment and Labor Law.