ATACP On-line

Reasonable Accommodation in the Workplace

National Rehabilitation Hospital

ADA Compliance Program

102 Irving Street, N.W.

Washington, D.C. 20010 (202) 877-1498 (Voice)

(202) 726-3996 (TTY)

(202) 723-0628 (Fax)

Reasonable Accommodations

The practice of providing reasonable accommodations for a qualified applicant or employee is not new. Since the 1970’s, reasonable accommodations have been required in regulations of the Equal Employment Opportunity Commission, the Office of Federal Contract Compliance Programs, and the Department of Justice to implement rules for nondiscrimination in employment from sections 501, 502, 503, and 504, respectively, of the Rehabilitation Act of 1973.

Making reasonable accommodations for a qualified applicant or employee with a disability is generally regarded as a key to the successful employment of persons with severe disabling conditions. Reasonable accommodation may include:

· making existing facilities used by employees readily accessible to and usable by

individuals with disabilities

· job restructuring

· part-time or modified work hours

· reassignment to a vacant position acquisition or modification of equipment or devices

· appropriate adjustment or modifications of examinations, training materials or policies

· the provision of qualified readers or interpreters

· other similar accommodations for individuals with disabilities

Definition

The Americans with Disabilities Act (ADA) defines “reasonable accommodation” as:

1. Modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; or

2. Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or

3. Modifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.

Specific Examples of Accommodations

I ) Access:

· physical accessibility of parking facilities, entrances, restrooms,

· elevators, workstations

· proper heights for elevator controls, drinking fountains, fire alarms

· appropriate labeling braille elevator controls for blind and/or visually impaired individuals

2) Job Restructuring:

method changes

· focusing on outcomes instead of the method (how to’s) to find a new way of accomplishing the outcome removal of non-essential tasks

flex-time

· to accommodate medical appointments and transportation scheduling

job sharing

3) Provision of Assistive Devices:

· headsets and speaker phones

· Text Telephones, TTY’s

· alternative keyboards

· assistive listening devices

· braille printers

4) Workstation Modification:

· ergonomics

· customized hand tools

· special jigs and fixtures

· modified equipment

· specialized workstation-turntable

5) Environmental Changes:

· changes in lighting

· noise abatement

ventilation

6) Work Related Personal Care Assistance:

· readers

· drivers

· interpreters

Examples of Reasonable Accommodations

JOB RESTRUCTURING: An employer or other covered entity may restructure a job by reallocating or redistributing nonessential marginal Job functions. An employer or other covered entity is not required to reallocate essential functions.

ADJUSTING WORK SCHEDULES: An essential function customarily performed in the early morning hours may be rescheduled until later in the day as a reasonable accommodation for a disability that precludes performance of the function at the customary hour.

Work schedules that permit no flexibility as to when work is performed or when breaks may be taken, or inflexible job procedures that unduly limit the modes of communication that are used on the job, or the way in which particular tasks are accomplished will require accommodation, unless undue hardship would result.

REASSIGNMENT TO A VACANT POSITION: Reassignment to a vacant position is also listed as a potential reasonable accommodation. In general, reassignment should be considered only when accommodation within the individual’s current position would pose an undue hardship.

Employers should reassign the individual to an equivalent position, in terms of pay, status, etc., if the individual is qualified and if the position is vacant within a reasonable amount of time.

An employer may reassign an individual to a lower graded position if there are no accommodations that would enable the employee to remain in the current position and there are no vacant equivalent positions for which the individual is qualified with or without reasonable accommodation. An employer is not required to maintain the reassigned individual with a disability at the salary of the higher graded position if it does not maintain reassigned employees who are not disabled. It should also be noted that an employer is not required to promote an individual with a disability as an accommodation. Reassignment is not available to applicants.

PERSONAL USE ITEMS: Employers may be required to provide items that are customarily personal-use items where the items are specifically designed or required to meet job-related needs.

An employer is not required to provide an adjustment or modification that assists the individual throughout his or her daily activities, on and off the job. An employer would generally not be required to provide an employee with a disability with a prosthetic limb, wheelchair, or eyeglasses. Nor would an employer have to provide as an accommodation any amenity or convenience that is not job-related, such as a private hot plate, hot pot or refrigerator that is not provided to employees without disabilities.

An employer may have to provide an individual with a disabling visual impairment with eyeglasses specifically designed to enable the individual to use the office computer monitors, but that are not otherwise needed by the individual outside of the office.

In all non-work facilities provided or maintained by an employer for use by its employees, the obligation to accommodate is applicable to employer sponsored placement or counseling services, and to employer provided cafeterias, lounges, gymnasiums, auditoriums, transportation and the like.

EMPLOYMENT TESTS: The reasonable accommodation section of the ADA requires that employment tests be administered to eligible applicants or employees with disabilities that

impaired sensory, manual or speaking skills in formats that do not require the use of the impaired skill.

The employer or other covered entity is, generally, only required to provide each reasonable accommodation if it knows, prior to the administration of the test that the individual is disabled and that the disability impairs sensory, manual or speaking skills. Thus, it would be unlawful to administer a written employment test to an individual who has informed the employer, prior to the administration of the test, that he is disabled with dyslexia and unable to read.

An employer may also be required, as a reasonable accommodation, to allow more time to complete the test. In addition, the employer’s obligation to make a reasonable accommodation extends to ensuring that the test site is accessible.

The intent of the provision is to further emphasize that individuals with disabilities are not to be excluded from jobs they can actually perform merely because a disability prevents them from taking a test, or negatively influences the results of a test, that is a prerequisite to the job.

This provision does not apply to employment tests that require the use of sensory, manual or speaking skills where the tests are intended to measure those skills. Thus, an employer can require that an applicant with dyslexia take a written test for a particular position if the ability to read is the skill the test is designed to measure. Similarly, an employer could require that an applicant complete a test within established time frames if speed is one of the skills for which the applicant is being tested. However, the results of such a test could not be used to exclude an individual with a disability unless the skill is necessary to perforrr an essential function of the position and no reasonable accommodation is available to enable the individual to perform that function, or the necessary accommodation would impose an undue hardship.

Employers may ask candidates to inform them of the need for a reasonable accommodation within a reasonable time prior to administration of the test and may request documentation verifying the need for accommodation.

Occasionally, an individual with a disability may not realize, prior to the administration of a test, that he or she will need an accommodation to take that particular test. In such a situation, the individual with a disability, upon becoming aware of the need for an accommodation, must so inform the employer or other covered entity.

OTHER ACCOMMODATIONS: Other similar accommodations for individuals with disabilities could include: permitting the use of accrued paid leave or providing additional unpaid leave for necessary treatment; making employer provided transportation accessible, and providing reserved parking spaces; and providing personal assistants, such as a page turner for an employee with no hands or a travel attendant to act as a sighted guide to assist a blind employee on occasional business trips.

It may also be a reasonable accommodation to permit an individual with a disability the opportunity to provide and utilize equipment, aids or services that employers are not required to provide as reasonable accommodations. For example, it would be a reasonable accommodation for an employer to permit an individual who is blind to use a guide dog at work, even though the employer would not be required to provide the guide dog for the employee.

Statistics on the Job:

Accommodation Costs.

· 12% cost more than $1,000

· 88% cost $1,000 or less

Of these

· 31% No Cost

· 19% $1 -$50

· 19% $50 - $500

· 31% $500 -$1000

Undue Hardship

Undue Hardship means significant difficulty or expense. Criteria used in determining if an accommodation will cause an undue hardship are the:

1. nature and net cost of the accommodation;

2. overall financial resources of the site or sites involved, number of persons employed, and the effect on expenses and resources of the site;

3. overall financial resources of the covered entity and overall size (number of employees, and number, type, and location of facilities);

4. type of operation (composition, structure, function of work force) and geographic separateness; and,

5. impact of the accommodation on the operation of the entity making the accommodation (ability of others to perform job and ability to conduct business).

If the employer or other covered entity can show that the cost of the accommodation would impose an undue hardship, it would still be required to provide the accommodation if the funding is available from another source, (e.g., a State vocational rehabilitation agency), or if Federal, State or local tax deductions or tax credits are available to offset the cost of the accommodation. In the absence of such funding, the individual with a disability requesting the accommodation should be given the option of providing the accommodation himself or of paying that portion of the cost which constitutes the undue hardship on the operation of the business.

The net cost of the accommodation needed under this part takes into consideration the availability of tax credits and deductions, and/or outside funding. The fact that a particular accommodation poses an undue hardship, however, only means that the employer is not required to provide that accommodation, If there is another accommodation that will not create an undue hardship, the employer would be required to provide the alternative accommodation.

Steps an Employer Should Take in Determining the Appropriate Reasonable Accommodation

Once a qualified individual with disability has requested provision of a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation. This process should be an informal, interactive problem solving technique involving the employer and the qualified individual with a disability. This procedure is also valid for making accommodations in the job application process and in providing equal benefits and privileges of employment. The steps an employer should take are as follows:

1) Analyze the particular job involved and determine its purpose and essential functions;

2) Consult with the individual with a disability to ascertain the precise job-related limitations imposed by the individual’s disability and how those limitations could be overcome with a reasonable accommodation;

3) In consultation with the individual to be accommodated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position; and

4) Consider the preference of the individual to be accommodated and select and implement the accommodation that is most appropriate for both the employee and the employer.

In some cases, neither the person who needs the accommodation, nor the employer can easily identify the appropriate accommodation.

The individual may not know enough about the equipment used or the nature of the work-site to suggest an appropriate accommodation. Likewise, the employer may not have enough knowledge of the person’s disability or the limitations that disability would impose n the performance of the job to know which accommodation would work. In such a situation, the employer should first assess the job by analyzing the actual duties of the position to determine the essential functions of the job which the individual with a disability must perform with or without accommodation. This assessment can be accomplished through a formal job analysis.

Then, in consultation with the individual, the employer should make an assessment of the specific limitations imposed by the disability on the person’s performance of the job’s essential functions.

If the consultation still does not reveal accommodation options, the employer should seek technical assistance.

Fundamental Principles for Accommodating Individuals with Disabilities in the Workplace

Fundamental Principles:

Form a partnership - between the employer (or service provider) and the individual with a disability.

Focus on ability – focus on what the individual can do, not on the disability. Disabilities come in numbers of one – never assume. Validate if necessary.

Individualize solutions - every individual’s needs are unique, so solutions must be individualized accordingly.

Keep it simple - this minimizes cost, ease of repair, and disruption to the workplace.

Be holistic - always look at the whole picture when considering an accommodation.

Environment, personal, and sociopsychological aspects of the proposed accommodation must be considered as well as the functional aspects.

Generalize where possible benefit everyone in the workplace.

Application of Assistive Technology/Workstation Ergonomics When Providing Accommodations

Design Process:

Access -a multi-dimensional concept. Employee needs to be able to “get through the door” in order to be able to complete work tasks.

Positioning - locating the worker relative to his or her work. Consider the most efficient way to minimize an individual’s energy expenditure. Practice energy conservation. Seating is critical!

Interface - the interval between the worker and his or her work. Apply sound Ergonomic Principles: “Treat the workplace as well as the worker.”

Simulation - try out the proposed accommodation (or assistive technology) whenever possible.

Accommodation Hierarchy

The following hierarchy of assistive technology intervention strategies provides a guide from simplest to most complex solutions. The steps in the hierarchy are:

1. Find an alternative way to do the task - modify or adapt the task when possible (restructuring of tasks, activities, and the environment to compensate for functional limitations including architectural modifications, attendant care arrangements, job restructuring).

2. Use commercially available products.

3. Utilize commonly available products in creative ways (for example, telephone headsets and dictaphones).

4. Combine technologies not typically used together (operating a voice controlled environmental control unit with a walkie-talkie).

5. Modify existing commercial devices.

6. Design and fabricate custom devices.

Other Points for Consideration

· Apply the “least invasive approach.”

· Consider individual preferences.

· Don’t neglect to consider the “radius of effect” of a proposed accommodation.

· Consider no-cost, low-cost alternatives - Accommodation doesn’t mean having to procure the most expensive device on the market.

Common Mistakes

· Neglecting to include the individual with the disability in the design process;

· Failing to consider alternative ways of providing accommodations;

· Making incorrect assumptions about a particular disability with respect to work performance;

· Exaggerated or poorly documented cost estimates; and,

· Failing to give the individual with the disability a fair chance.

Miscellaneous Facts Regarding Reasonable Accommodation

· Employers are not required to accommodate individuals with disabilities byeliminating the essential functions of the job.

· Employers are required to make reasonable accommodations only to “known physical or mental limitations.” They are not required to unilaterally assess the needs of employees and address them in the absence of any action or request on the part of the employee.

· An employee “...cannot lie in ambush with a hidden handicap and then charge failure to

accommodate when he is discharged for other reasons” [Dowden v. Tisch, 685 F. Supp. 153, 156, n.3 (E.D. Tex. 1988)].

· There must be a nexus between an individual’s disability and the need for accommodation.

· Employers may require individuals with disabilities to provide documentation of the need for reasonable accommodation when the need for a requested accommodation is not obvious.

· An employer or other covered entity may not compel a qualified individual with a disability to accept an accommodation, where that accommodation is neither requested nor needed by the individual.

· The preference of the individual with a disability should be given primary consideration. However, the employer providing the accommodation has the ultimate discretion to choose or the accommodation that is easier to provide. The accommodation does not have to be the “best” accommodation possible, so long as it is sufficient to meet the job-related needs of the individual being accommodated.

· An individual’s willingness to provide his or her own accommodation does not relieve the employer of the duty to provide the accommodation should the individual for any reason be unable or unwilling to continue to provide the accommodation.

· The mandate to make reasonable accommodations does not require the employer to ignore the impact the individual’s disability has on the operation of its program, if an undue hardship is a result of the impact.

Changing Needs

“A successful accommodation is a beginning - not an ending. Accommodation is an evolving process. People do not remain static - so neither should the accommodation(s). Follow up and provide for additional accommodations to meet changing needs.”