The EEOC recently issued guidelines addressing the ADA reasonable accommodation process. While the guidelines shed light on many issues, they also leave some unanswered questions. Our Editors analyzed the 70-page guidance and summarized the highlights below.

Employers have been complying with the Americans with Disabilities Act (ADA) for almost seven years, yet most are still confused by its complex requirements and distinctive vocabulary. In particular, one of the centerpieces of the law, the duty of reasonable accommodation, requires employers to engage in a complicated interactive process to determine how to remove workplace barriers that prevent a disabled person from applying for or performing a job. To explain this duty, the Equal Employment Opportunity Commission (EEOC) recently issued its Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (Guidance). The Guidance, provided to EEOC examiners who investigate claims under the ADA, answers some employer questions but also raises a few more.

To help you understand the 70-page Guidance, the Editors are dedicating half of this issue of HR Matters to its analysis. The EEOC also issued a condensed version of the Guidance for smaller organizations, Small Employers and Reasonable Accommodation.

The Duty to Accommodate
Under the ADA, employers with 15 or more employees must provide "reasonable accommodation" to qualified disabled individuals unless doing so would cause "undue hardship." According to the Guidance, workplace barriers can prevent otherwise qualified disabled people from applying for or performing jobs that they could do with some accommodation. Thus, simply put, a covered employer may have to remove these barriers. Examples of possible accommodations include modifying the job application process to allow a disabled individual to compete for a job and making work facilities accessible. These and other job-performance accommodations are discussed below.

The Guidance also makes it clear that the employer’s duty to accommodate extends to both job applicants and current employees who are disabled and otherwise meet the job qualifications (meaning they have the requisite skills, experience, and education). If an applicant or employee does not meet the basic job qualifications, you do not have to provide an accommodation.

The Undue Hardship Defense
An employer must provide only an accommodation that is "reasonable." An accommodation is not reasonable if providing it would impose an "undue hardship" on the operation of the employer’s business. "Undue hardship" means significant difficulty or expense in making, or resulting from, the accommodation. According to the ADA, the undue hardship standard takes into account not only the financial difficulty imposed on the employer but also whether the accommodation would be unduly disruptive to its business operations or other employees. The Guidance does not elaborate on what financial difficulty the employer must show to meet the standard. Instead, it simply indicates that employers should consider all possible sources of outside funding, including any available state or federal funding or tax credits. The Guidance even suggests that if a portion of the accommodation cost would be an undue hardship, the disabled employee should be asked to pay for that portion.

The Guidance recognizes that some modifications or adjustments are not considered reasonable accommodations. For example, an employer does not have to eliminate an essential function of the job if the employee cannot perform the function even with an accommodation or if the needed accommodation creates an undue hardship. In addition, production standards do not have to be lowered as long as they are applied uniformly. Further, employers do not have to provide personal items a disabled employee may need for daily living both at work and at home (such as wheelchairs) or "personal use amenities" if they are not provided to nondisabled employees (such as refrigerators).

Initiating the Accommodation Process
The Guidance states that the burden is on the applicant or employee to request an accommodation. Employers are not expected to be clairvoyant. However, the disabled individual does not have to use any "magic" words or mention the ADA specifically to request an accommodation. For example, an employee can tell his supervisor he needs six weeks of leave for treatment of a back problem, without specifically saying he needs an accommodation under the ADA. Nevertheless, the employee must give the employer enough information to put the employer on notice that he needs an accommodation. For example, if the employee only tells his supervisor that he needs a new chair because his current chair is uncomfortable, he has not requested an accommodation.

If an employee has not asked for an accommodation, you do not have to inquire whether one is needed. However, the Guidance suggests that you should broach the subject with an employee who is having difficulty performing a job function if you know the employee has a disability and you think the problem is related to the disability.

The Guidance also emphasizes that accommodation requests do not have to be in writing. The employer may ask the disabled individual to submit a request in writing but may not ignore any verbal requests.

Responding to Accommodation Requests
Once an employee or applicant has requested an accommodation, the Guidance indicates that you should determine the following: (1) whether the accommodation is needed; (2) if needed, whether it would be effective; and (3) if effective, whether providing it would create an undue hardship. To this end, the Guidance suggests that you engage in an informal, interactive process to determine what the individual’s needs are and to identify appropriate accommodations. Since you only have to accommodate disabled individuals, the first step should be to determine whether the person actually has a disability protected under the ADA.

If the disability or need for accommodation is not apparent, the Guidance explains that the ADA allows employers to ask questions concerning the nature of the disability and the person’s limitations. In addition, you may require documentation from a medical professional regarding the existence of the disability and the need for accommodation, but the documentation request must be limited to these two issues. Thus, you cannot ask for all of the individual’s medical records or for information on disabilities that do not need accommodation.

If the individual does not provide the medical documentation, the employer may refuse to provide the accommodation. Alternatively, if the individual provides insufficient information to determine whether the person has a disability and needs accommodation, the employer must give the individual an opportunity to provide the missing information. The employer’s ability to require documentation is limited, however. You can’t ask for documentation if (1) both the disability and need for accommodation are obvious; or (2) the individual has already provided sufficient information to show that he has a disability and needs accommodation.

Accommodating Applicants and Employees
For disabled applicants, the duty to accommodate includes removing barriers in the application process and allowing the individuals to compete for jobs. For example, an employer may need to modify its application forms, testing procedures, and facilities to allow disabled applicants to participate in the process. Thus, you may ask applicants if they need an accommodation for the application process. However, you generally may not ask an applicant if he needs an accommodation to perform the job. An exception to this rule is that you may ask about the type of accommodation needed if the applicant has an obvious disability or reveals the existence of a disability, or you reasonably believe the applicant will need an accommodation to perform specific job functions.

For disabled employees, accommodations must be made not only to allow them to perform the essential functions of the job but also to allow them to enjoy all "benefits and privileges of employment." These benefits and privileges include any employer-sponsored social events, training programs, communications, lounges, transportation, and other services.

The Guidance also includes an extensive discussion of the different types of possible accommodations related to job performance and focuses on job restructuring, leaves of absence, modified and part-time schedules, modified workplace policies, and reassignment. Each of these topics is discussed briefly, below.

• Job restructuring. Employers may be required to reallocate or redistribute marginal job functions to other employees if an employee is unable to perform them because of a disability.

• Leaves of absence. A leave may be necessary so an employee can seek treatment of a disability, recuperate from a disability-related illness, receive training on an assistive device or with a service animal, or avoid temporary adverse work conditions that could aggravate a disability (such as a radical change in office temperature). Employers are not required to provide paid leave as an accommodation but must allow the use of accrued paid leave or unpaid leave. The Guidance also discusses briefly the interaction of the ADA and the Family and Medical Leave Act but does not provide new insight into this subject. (For a detailed discussion on the ADA and FMLA, see the December 1998 HR Matters.)

The Guidance also muddies the issue of indefinite leaves and the ADA. It states that giving a leave to an employee who cannot provide a fixed date of return is a form of reasonable accommodation, unless the employer can show that the leave would create an undue hardship because it cannot plan for the employee’s return or permanently fill the position. Several courts, however, including the Fourth and Seventh Circuit Courts of Appeals, previously determined that providing a leave of indefinite duration is not a reasonable accommodation. Thus, employers faced with requests for indefinite leaves should weigh their options with legal counsel.

• Modified and part-time schedules. Employers may have to adjust arrival or departure times, provide periodic breaks, change when certain functions are performed, or allow part-time work. However, if the modification would significantly disrupt the employer’s operations or affect the ability of other employees to perform their jobs, it would be considered an undue hardship.

• Modified workplace policies. An employer may have to change a workplace policy to accommodate an employee’s disability-related limitation. For example, the employer may have to grant more unpaid leave than usually allowed to an employee who needs chemotherapy or allow a diabetic employee to eat at his desk even though policy prohibits eating at workstations. However, these modifications do not have to be extended to any nondisabled employee.

• Reassignment. The Guidance emphasizes that reassignment is the "accommodation of last resort" and that employers should consider it only if accommodation in the present job creates an undue hard- ship or would not be possible. In addition, the disabled employee must be qualified (i.e., have the requisite skills, knowledge, and experience) for the new job, although the employer may have to provide additional accommodation so he can perform it.

The Guidance states that reassignment should be to a position that is equivalent in pay, status, and benefits. However, if no equivalent position is available, you can reassign the employee to a vacant, lower-level position and pay the employee at that job’s normal rate. You do not have to promote the employee to a vacant position, although you must allow the employee to compete for promotions. In addition, you do not have to create a new position or transfer another employee to create a vacancy.

The Guidance also reflects the decisions of many courts that employers must provide only an effective accommodation, not necessarily the accommodation the individual prefers. In fact, if more than one accommodation is effective, the employer has the "ultimate discretion" to choose which one to use.

Do It, But Don’t Tell
Another confusing topic the Guidance addresses but does not clarify is the issue of what you can tell other employees about accommodations made. Often, an employer modifies a work rule or policy as an accommodation and then appears to be treating the disabled employee "better." As a result, other employees may ask about the special treatment, especially if the disability is not apparent. However, the ADA prohibits employers from disclosing medical information, including the fact that an employee has a disability that is being accommodated.

So what can you say? The Guidance is not very helpful on this point. It suggests that an employer respond to inquiries by "emphasizing its policy of assisting any employee who encounters difficulties in the workplace" and by pointing out that "many of the workplace issues encountered by employees are personal" and that "it is the employer’s policy to respect employee privacy." As a practical matter, this response does not explain sufficiently the employer’s actions and may even mislead employees into thinking that they could qualify for similar treatment if they have any "difficulties" at work. Other HR and legal experts suggest a better answer is to indicate that the employer is complying with state and federal law by providing these modifications and that they do not represent any change in the employer’s policies.

Making Your Life Easier, Sort Of
Although the EEOC calls the Guidance "an extremely useful tool," some critics charge that it does not address key issues, including whether employers must accommodate individuals that are "regarded as" disabled but who do not actually have a disability. Other critics point out that it is inconsistent with recent court rulings interpreting the ADA on several issues, including indefinite leaves as accommodations. Although the Guidance is not binding on courts that interpret the ADA, EEOC examiners investigating ADA claims will rely on it to determine if an employer has met its accommodation obligations. Thus, the Guidance provides insight into how the EEOC will evaluate employers’ accommodation attempts. In addition, it incorporates into one document, requirements from the ADA statute and regulations, recent court decisions interpreting the law, and other EEOC guidelines addressing the ADA. While not a perfect tool, the Guidance should help you determine what steps to take when an employee or applicant requests an accommodation. Copies of the Guidance are available free by calling the EEOC or on the EEOC’s web site.

For more information, see EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Office of Communications and Legislative Affairs, 1801 L Street, NW, Washington, DC, 20507, 800-669-3362, www.eeoc.gov./docs/accommodation.html.

Small Employers and Reasonable Accommodation, EEOC (see above address and phone), www.eeoc.gov/facts/accommodation.html.

"The FMLA and ADA Puzzle: Putting the Pieces Together," HR Matters, December 1998.

For additional information on reasonable accommodation of disabilities in hiring, see Hiring, Chapter 202, page 202:14, note 14. For additional information on accommodating employees, see Serious Diseases, Chapter 203A, page 203A:8 , note 11.