Greenberg Traurig Alert
EEOC Clarifies Reasonable Accommodation Under the ADA
By Ronald M.
Rosengarten and Jennifer
Demberg, Greenberg Traurig, Miami Office
View or download the PDF version of this Alert here.
Recently, the Equal Employment Opportunity Commission ("EEOC") issued its
latest Enforcement Guidance addressing two areas of the Americans With Disabilities Act
("ADA") which have consistently caused concern and confusion among employers:
reasonable accommodations and undue hardship. The EEOC reaffirmed its prior positions with
regard to these topics, and also provided clarification and examples to assist employers
when they are faced with a disabled employee who requires a reasonable accommodation.
What is a Reasonable Accommodation?
The ADA requires employers to provide a reasonable accommodation to qualified
individuals with disabilities who are em-ployees or applicants, unless doing so would
cause an undue hardship. The EEOC noted some reasonable accommo-dations commonly provided
by employers: (1) making existing facilities accessible; (2) job restructuring; (3)
part-time or modified work schedules; (4) acquiring or modifying equipment; (5) changing
tests, training materials, or policies; (6) providing quali-fied readers or interpreters;
and (7) reas-signment to a vacant position.
The ADA does not require an employer to eliminate a fundamental duty of a position, nor
is it required to lower production standards. The only statutory limitation on an
employers obligation to provide a reasonable accommodation is that it is not
required to provide one if it would cause an undue hardship on the employer. Undue
hardship, as discussed later, must be assessed on a case-by-case basis.
How Must an Individual Request a Reasonable Accommodation?
The EEOC takes the position that when an employee requires a reasonable accom-modation,
he or she must merely let the employer know that an adjustment or change at work for a
reason related to a medical condition is needed. The em-ployee may use "plain
English" and need not mention the ADA or the phrase "rea-sonable
accommodation." Employers therefore have an obligation to listen carefully to the
requests and needs of their employees. Moreover, simply because an employee has requested
a reasonable accommodation does not mean that the employer is required to provide it. The
request is the first step in an informal, interactive process between the employee and
employer. The employer may choose among reasonable accommodations so long as the chosen
accommodation is effective.
When an employee requests a reasonable accommodation, if an employees disability
and/or the need for accommodation is not obvious, the employer may ask the
employee for reasonable docu-mentation about his or her disability and functional
limitations. However, an employer cannot ask for such documentation if: (1) both the
disability and need for reasonable accommodation are obvious; or (2) the employee has
already provided the employer with sufficient information to substantiate that he or she
has an ADA disability and needs the requested reasonable accommodation.
An employer is not required to excuse past misconduct, even if it is the result of the
employees disability, and it may discipline the employee for such misconduct. Once
the employees disability and need for reasonable accommodation becomes known,
however, the employer must provide reasonable accommodation to allow the employee to meet
a conduct standard in the future, barring undue hardship, and except where the
for the violation is termination.
Must an Employer Ask Whether a Reasonable Accommodation is Needed When an Employee Has
Not Asked for One?
Consistent with the EEOCs prior guidance, generally an employer is not required
to ask whether a reasonable accommodation is needed, except where: (1) the employer knows
that the employee has a disability; (2) the employer knows, or has reason to know, that
the employee is experiencing workplace problems because of the disability; and (3) the
employer knows, or has reason to know, that the disability prevents the employee from
requesting a reasonable accommodation. In these instances, the employer should initiate
the reasonable accommodation interactive process.
Leave of Absence as a Reasonable Accommodation
Permitting the use of accrued paid leave, or unpaid leave, is a form of reasonable
accommodation when necessitated by an employees disability. An employer does not
have to provide paid leave beyond that which is provided to similarly situated employees.
Furthermore, an employee who is granted a leave of absence as a reasonable accommodation
is entitled to return to his or her same position unless the employer demonstrates that
holding open the position would impose an undue hardship. If undue hardship results, the
employer must consider whether it has a vacant, equivalent position to which the employee
can be reassigned for the remainder of his or her leave and then, at the conclusion of
leave, can return to this new position.
Reassignment as a Reasonable Accommodation
The ADA specifically lists "reassignment to a vacant position" as a form of
reasonable accommodation. Before considering reassignment, an employer should first
consider those reasonable accommodations that would enable an employee to remain in his or
her current position. The EEOC Guidance specifically states that reassignment is the
reasonable accommodation of last resort and is required only after it is determined that
there are no reasonable accommodations that will enable the employee to remain in his or
her position or all other reasonable accommodations would impose an undue hardship.
Undue hardship must be based on an individualized assessment of current circumstances
that show that a specific reasonable accommodation would cause significant difficulty or
expense. A determination of undue hardship should be based on several factors, including:
(1) the nature and cost of the accommodation needed; (2) overall financial resources of
the facility making the reasonable accommodation, as well as the larger entity if the
facility making the reasonable accom-modation is part of larger entity; (3) type of
operation of the employer; and (4) impact of the accommodation on the operation of the
facility. A cost-benefit analysis does not determine whether a reasonable accommodation
will cause undue hardship and should not be utilized in making such determination. Rather,
undue hardship is determined based on the net cost to the employer.
An employer cannot claim undue hardship based on employees or customers
fears or prejudices towards the employees disability or the potential negative
impact on the morale of other employees. Undue hardship can be claimed, however, if the
provision of a reasonable accommodation would cause significant disruption to the
employers operations. Undue hardship must be consid-ered on a case-by-case basis.
A question often asked is whether an employer can deny request for leave when an
employee cannot provide a fixed date of return. In its Guidance, the EEOC
in certain circumstances, undue hardship can derive from the disruption to
the operations of the employer that occurs because the employer can neither plan for the
employees return, nor permanently fill the position. An employer has the right to
request periodic updates on the employees condition and his or her possible date of
return. After receiving these updates, an employer may reevaluate whether continued leave
constitutes an undue hardship. If an employee provides an approximate date of return, an
employer may not claim undue hardship solely because the employee cannot provide an exact
Despite the succession of EEOC Guidances on the ADA, the fact remains that most ADA
issues must be resolved on a case-by-case basis. The best approach always is an
interactive dialogue with the employee and reason-able consideration of the options
available. Greenberg Traurig will continue to help its client employers develop sound
policies with regard to the ADA and remains ready to advise employers on how to respond to
specific instances that require assessment of ADA situations and compliance with the ADA.
©1999 Greenberg Traurig
This GT ALERT is issued for informational purposes only and is not intended
to be construed or used as general legal advice. Greenberg Traurig attorneys provide
practical, result-oriented strategies and solutions tailored to meet our clients’
individual legal needs.