The ADA’s Redefined “Reasonable Accommodation” Requirement
Michael G. Trachtman |
Just how reasonable and accommodating do you have to be?
Since its passage in 1990, the ADA (and parallel state statutes) has required employers to “reasonably accommodate” employees who have a mental or physical “disability” – that is, an employer must provide a “disabled” employee with what the employee needs in order to perform the “essential functions” of his or her job, so long as doing so will not cause the employer to suffer an “undue hardship.” Under the ADA, a disabled employee who can perform the essential functions of the employee’s job, with or without a reasonable accommodation, is protected from termination or other adverse consequences for non-performance.
Long Story Short … The ADA Post-2011
Until 2011, the threshold question in an ADA situation was whether the employee’s condition amounted to a “disability” as defined by the ADA: if it did not pass that test, the ADA did not apply. The bar was set fairly high – in order to constitute a “disability,” an employee’s condition had to “substantially limit” one of the employee’s “major life functions.”
All that changed in 2011, the effective date of a variety of regulations enacted in the wake of Congressional legislation that was intended to drastically broaden the reach of the ADA. In a verbal sleight of hand, the new regulations dramatically lowered the disability bar: the law now provides that in order to “substantially limit” a major life function, the employee’s condition no longer has to be all that substantially limiting; and the law further states that a “major life function” really does not have to be all that major. In addition, the regulations mandate that medical “mitigation” does not count – so, for instance, an employee with a heart condition who takes a medication that allows the employee to run a marathon a week can nevertheless be “disabled” under the ADA. The effect of the medication does not factor into the “disability” equation.
Less Focus on “Disability; More Focus on “Reasonable Accommodation”
There are, as you might imagine, lots of nuances, exceptions and complications involved in these changes, but this much is clear: if an employee has any sort of mental or physical condition that affects the employee’s ability to do his or her job, it is usually not worth focusing on whether the condition constitutes a “disability”; rather, well-advised employers will get right to the issue of whether the employer can provide a “reasonable accommodation.”
For that purpose, the law requires that the employer and employee engage in an “interactive dialogue” — a real give-and-take in which both sides have the obligation to use their best efforts – to determine if there is a reasonable accommodation that can be implemented to enable the employee to satisfy the essential functions of the job without imposing an undue hardship on the employer.
But, you say, what’s “reasonable” and something less than an “undue hardship” for Apple or Exxon might not work for me … how do I know how far I have to go?
The answer is that you don’t. There is no bright line test. A company with $50 million in revenue will likely be required to incur more costs and inconvenience than a company with $1 million in revenue, but other than that generality, it is a “know it when you see it” affair.
The EEOC “Guidance”: What’s “Reasonable”?
Which brings us to where we are today… The EEOC has just published a “Guidance” – a paper that is not binding, but is meant to provide some advance notice of the approaches to the “reasonable accommodation” conundrum the EEOC will expect employers to consider. Many of these approaches will sound familiar, but many include “accommodations” most employers have never considered, or even heard of. The Guidance specifically references employees with cancer, diabetes, epilepsy and intellectual disabilities, but the approaches will apply to a much broader range of “disabilities” as well.
For example, in many circumstances, you will have to consider (and be able to prove you considered) options such as these:
- Periodic breaks and rest periods;
- Shift or other schedule changes;
- Leave for doctors’ appointments and treatments;
- Leave for recuperation. Note: For employers who have more than 50 employees, any “leave” accommodation will probably overlap with the FMLA. And apart from the FMLA there are serious questions and a developing body of court decisions on how much leave is “reasonable.” You’ll need some guidance here;
- Assignment of non-essential job functions to co-workers;
- Assignment to a vacant job, if even on a temporary basis. Note: You do not have to create a new job for a disabled employee, but you may have to reassign the employee to an existing, vacant job;
- Permission to bring a service animal to work;
- Permission to work at home for some period;
- Particularly for employees with intellectual disabilities, additional or modified training, additional time to complete tasks, written (or tape recorded) instructions and checklists, additional or modified equipment, and a “job coach” to assist the employee’s mastery of the job and to assist with appropriate social interaction.
The obvious point is that the reasonable accommodation requirement is much more than a tweak in duties or a new office chair. The EEOC requires a serious and thorough analysis of potential alternatives.
“Do What You Need to Do”
Many well-meaning employers, sympathetic to an employee with a problem, will over-accommodate; that is, they will do more than the law requires. That’s their right, but as the saying goes, no good deed goes unpunished. A “don’t worry about it, do what you need to do” attitude that results in, for instance, extensively limited duties or time off, beyond what would be “reasonable” in a small and understaffed company, might seem like a fine idea, at first. But as time goes by and the burdens imposed by this sort of an accommodation begin to mount, reality often takes over. Having provided the accommodation, the employer, at least implicitly, has deemed it “reasonable,” and undoing what was done can create issues.
And, in future situations involving other employees, such well-meaning employers often run into the “you did it for him, you must do it for me” backlash.
The moral: While humane exceptions are sometimes merited, determining the extent of a “reasonable accommodation” should normally be treated as a business decision with legal implications. Get the right advice, and stick to an overall plan and approach. Consistency matters.
Let us know if we can help.
Michael G. Trachtman is MEA’s general counsel and the President of Powell Trachtman Logan Carrle & Lombardo P.C., a 30+ attorney King of Prussia-based law firm that has represented businesses and business people for over twenty-five years. He can be contacted at firstname.lastname@example.org. See www.powelltrachtman.com for more information.