Reasonable accommodation under the Americans with Disabilities Act continues to flummox many employers. But it shouldn’t be that hard, at least not in most cases. Here are my top eight rules. I’m leaving out the obvious ones, such as “Engage in the interactive process,” “Be sure to document all of your efforts,” “Consult with employment counsel as needed,” and “Don’t retaliate against an employee for requesting a reasonable accommodation.” You already knew that stuff.
Rule No. 1: There are no rules. One thing about the ADA that surprises a lot of employers – especially those who are used to the hyper-specific Family and Medical Leave Act regulations, or state workers’ compensation laws – is the fact that the ADA is so loosey-goosey. When making a disability-related accommodation under the ADA, the rule is “Whatever works.” If you and the employee can agree on an appropriate accommodation, you should be all set. The U.S. Equal Employment Opportunity Commission, which administers the ADA, is not going to be on your case about which “i”s you crossed and “t”s you dotted (wait – should that be the other way around?). If you and the employee are happy, the EEOC will be happy. Isn’t that nice?
Rule No. 2: You don’t have to accommodate a disability you don’t know about. Let’s say you have an employee who has a medical condition that requires accommodation, but the employee is a very private person and never tells you about it. You generally are under no obligation to accommodate that condition because the employee is responsible for disclosing it and for requesting accommodation. That said, if the employee’s condition is obvious, and if it seems to be affecting job performance, safety, or behavior, then you as the employer should initiate the discussion and not wait for a disclosure/request from the employee.
Rule No. 3: You make the call (usually). You are required to at least consider any reasonable accommodations proposed by the employee, but “at the end of the day,” as they say, it’s your call. As long as your accommodation is effective, you can choose whatever works best for you, including a cheaper accommodation. This is true even if the employee’s proposed accommodation would not be an undue hardship for you.
Rule No. 4: You can (usually) confer with the employee’s health care provider. In some cases, to provide an effective accommodation, you may need to know what the employee’s condition is and what the employee’s health care provider thinks will help. If so, that’s OK – you’re allowed to ask. One thing I often recommend is having the employer draft a letter for the employee to take to the provider that describes what has been going on at work, provides a thorough description of the employee’s job including physical or mental demands, and asks for recommendations. (If you want the provider to answer your letter, be sure to have the employee sign a valid medical authorization that complies with the privacy rule of the Health Insurance Portability and Accountability Act. Under the HIPAA privacy rule, the provider is prohibited from communicating with you unless the employee authorizes it.)
If you have a good reason for doing it, you can even require the employee to see a provider of your choice. We see this often when the employee’s provider is not the best qualified to assess the employee’s condition and make meaningful recommendations. In those situations, you can send the employee to a qualified provider in the relevant specialty and ask for the specialist to provide an assessment and recommendation.
Rule No. 5: Know that time changes everything, and your accommodations may also have to change. Most medical conditions either get better with time, get worse with time, or stay the same over time. (Wow, Robin, way to go out on a limb.) If the employee gets better, you may be able to accommodate less. If the improvement is dramatic enough, you may be able to end the accommodations altogether. On the other hand, if the condition becomes more severe, you may have to make more accommodations than you started out with. You may also have to adjust your original accommodations based on changes in technology used on the job, changes in business conditions, your company’s philosophy on remote work, and the like.
Rule No. 6: If you have any flexibility, err on the side of accommodation. If an employee’s medical condition seems like it could be a disability but you're not sure, I think it’s better to just go ahead and try to accommodate. In other words, don’t nitpick about whether the condition is a “'disability' within the meaning of the ADA." In 2008, Congress amended the ADA to make the definition of “disability” much more encompassing than it had been in the past. If your employee’s situation is borderline and you take a hard line, then this is a battle you’re very likely to lose with the EEOC and with the courts.
Rule No. 7: Beware of overlap. Workers’ compensation, the Family and Medical Leave Act, and the ADA are not mutually exclusive. All three can apply at once. You can also have state disability protection laws and state leave laws, including paid leave laws. Make sure you’re complying with all the laws that apply. One fairly common employer mistake is refusing to give an employee leave for a legitimate medical condition because the employee has either exhausted his FMLA allotment or hasn’t been employed long enough to be eligible for FMLA leave. Don’t forget that, even if the employee is not entitled to FMLA leave, he may still be entitled under the ADA to some sort of leave as a disability-related accommodation. (And, again, be sure to consider those applicable state laws.)
Rule No. 8: Engage in the interactive process, document all your efforts, consult with counsel as needed, and don’t retaliate. Sorry. I couldn’t resist.
