THE ADA AND REASONABLE ACCOMMODATIONS
Co-Ad, Inc.
Comprehensive Advocacy, Incorporated
Idaho's Protection and Advocacy System Since 1977
[Home]
Acknowledgement: This publication utilizes materials originally developed by the Arizona Center for Disability Law. Used with permission.
TABLE OF CONTENTS
A. Introduction to the ADA and this Guide
What the ADA Covers
How Co-Ad, Inc. Assists People with Disabilities
This Guide is NOT a Substitute for Legal Advice
Why the ADA includes Employment Protections
When the ADA Applies
B. A Reasonable Accommodation Is . . .
C. When An Employer Must Provide a Reasonable Accommodation
General Requirements
Reasonable Accommodations May Be Needed in These Three Situations
D. Employer's Considerations
Factors
Abilities and Limitations
Limits to the Employer's Duty to Accommodate
Providing an Effective Accommodation
Extraordinary Accommodations
E. Steps for Identifying and Providing a Reasonable Accommodation
Notice of Employer's Accommodation Obligation
Employee Request/Employer Inquiry
Documentation
Evaluation of the Job
Discussion with the Individual with the Disability
Right to Refuse the Accommodation
Giving the Employee the Option of Providing an Accommodation That Would Otherwise be a Hardship to the Employer
Technical Assistance
Appendix
Sample Lists of Generic Accommodations
Sample Form #1 for Requesting Accommodation
Sample Form #2 for Requesting Accommodation
Guide for Obtaining Documentation of Disability/Accommodation
Sample Use of Form for Documentation
Financial Assistance to Employer for Accommodations
A. Introduction to the Americans with Disabilities Act (ADA) and this Guide
What the ADA covers
On July 26, 1990 the ADA was passed by Congress. The ADA provides major civil rights protections to individuals with disabilities. The intent of this federal law is to reduce barriers to persons with disabilities and provide equal opportunity in employment, public accommodations, public services, transportation, and telecommunications. The various titles of the ADA affect many aspects of the lives of people with disabilities.
How Co-Ad, Inc. Assists People with Disabilities
If you believe you have been discriminated against on the basis of a disability in employment or access to public services, public accommodations, public transportation or telecommunication services, staff at Co-Ad, Inc. can provide you with information about the ADA and enforcing your rights under the ADA. Co-Ad, Inc. is a non-profit, public interest law firm providing free advocacy, information and referral services, legal research, community legal education, and , in selected cases, legal representation to individuals with disabilities. Co-Ad, Inc. is the designated protection and advocacy (P&A) system providing services for Idahoans with a wide range of physical and mental disabilities.
Information about the eligibility requirements and priorities are available from Co-Ad, Inc. upon request. Assistance is provided for disability related issues according to program eligibility requirements, priorities and staff availability.
This Guide is not a Substitute for Legal Advice
Co-Ad, Inc. recommends that persons obtain professional legal advice to resolve a legal
dispute regarding discrimination on the basis of a disability. This guide is not a substitute for legal
assistance. This guide is meant to provide people with disabilities with information and examples
about employment protections under the ADA.
Why the ADA Includes Employment Protections
Oftentimes, people with disabilities do not have an equal opportunity to work or advance
in their employment. People with disabilities are often restricted in employment opportunities by
many different kinds of barriers. Some face physical barriers that either make it difficult or
impossible to get into and around a workplace or to use work equipment at the site. Some are
excluded because they communicate differently than their co-workers. Still others are excluded
because of rigid work schedules which do not permit flexibility for people with special needs
because of a disability.
In other cases, people are not denied opportunities because of actual barriers, but because of prejudice. These are the barriers in other people's minds: fears, stereotypes, presumptions, and misconceptions about job performance, safety, absenteeism, costs, or lack of acceptance by co-workers and customers.
Congress enacted the ADA to eliminate these barriers to equal opportunity in employment. The ADA makes it unlawful for an employer covered by the law to discriminate against applicants and employees with disabilities. The United States Equal Employment Opportunity Commission (EEOC) is responsible for enforcing this law. People with disabilities also have the right to bring private lawsuits against employers who discriminate against them if they first file a charge of discrimination with the EEOC within the time limits set out by the ADA. See Co-Ad's guide on Enforcement of the ADA for more information about the requirements for filing a charge.
This guide will provide the user with information about the requirements of the ADA for employers to provide reasonable accommodations to qualified individuals with disabilities. Other available guides on employment include:
5. When the ADA Applies
The ADA now applies to employers with at least 15 or more employees during a calendar year. To make it easier for smaller employers to comply with the law, the ADA provided for a phase-in period. Prior to July 26, 1994, only employers with at least 25 or more employees were covered by the ADA.
Also covered by the ADA are employment agencies, joint labor management organizations, and unions. If employers contract with other agencies to perform services, such as background investigations and reference checks, the actions of the employer through these agents would also be covered by the ADA.
The ADA protects qualified individuals with a disability. Disability is defined under the
ADA as a physical or mental impairment that substantially limits an individual in the ability to
perform major life activities, such as seeing, hearing, walking, performing manual tasks, working
and learning. A person is qualified under the ADA if s/he has all of the skills, education, and
experience necessary for the position and is able to perform the essential functions of the job with
or without reasonable accommodations. For more information about what these special terms
mean, See Co-Ad's guide entitled "An Overview of the Employment Protections of the ADA".
B. A Reasonable Accommodation Is . . .
A reasonable accommodation is any change in the work environment or the way things are usually done that gives an individual with a disability an equal employment opportunity.
Types of reasonable accommodations include:
modification of a building or work location may involve making the area accessible and usable by an individual because of a physical or mental disability.
Sheryl is hired as an office manager. The desk in her office is too low for her wheelchair to fit under the desk. A possible accommodation would be to place some bricks or some other material under the desk legs to create more room for the wheelchair.
Albert has severe arthritis. He may need a reserved parking space close to the office where he works as an accommodation.
James suffered a traumatic brain injury. He has worked as an engineer in an office where many individuals have desks in a large room. He fears that noise and visual distractions will make it difficult to perform his job duties. Possible accommodations might include construction of a cubicle in which he can work, use of headphones, use of a white noise generator, or use of a study carrel.
job restructuring by exchanging marginal duties between co-workers
Tim is hired as a secretary. He has epilepsy and is not able to drive because his seizures are not yet controlled by medication. Occasionally, his boss needs him to deliver a report. Another co-worker in the supply room could be asked to run the errand while Tim covers the supply room during the errand.
part-time or modified work schedule
Jane has a mental illness. She works as a stock person in a grocery store. Jane needs to go to a group counseling session one time per week. Because the group counseling session only occurs during work hours, she has asked for a modified work schedule where she leaves ½ hour early but comes in ½ hour early on Wednesdays.
flexible leave policies
Megan is a lawyer new to a firm. She is blind and uses a service animal for mobility. When her service animal dies, she must go to a training center for a week to go through training with another service animal. The employer has a leave policy that no employee can take leave during the three-month probationary period. The employer may need to make an exception to the policy as a form of accommodation for Megan.
Other examples of leave policies which may be needed as an accommodation for a disability include time off for surgery and recuperation, hospitalization for a psychiatric condition, inpatient or outpatient drug or alcohol treatment, repair of equipment, temporary adverse work conditions, or training on how to use assistive technology.
acquiring or modifying equipment or devices
Dennis is a receptionist with a moderate hearing impairment. He uses a hearing aid but also needs a telephone amplification device for the telephone to hear callers. His employer will probably need to purchase the telephone amplification device.
Anthony is a school teacher with limited use of his arms due to rheumatoid arthritis. He needs a lazy Susan on his desk to put the materials he needs frequently close at hand. He also needs a music stand to place heavy textbooks so that he doesn't have to handle the heavy books, but can simply turn the pages.
adjusting or modifying examinations, training materials, or policies
Elizabeth has Post-Polio Syndrome. She is hired for a part-time position as a sales consultant and is required to attend a full-day training seminar. She is unable to work full-time because of limited endurance and fatigability. She may need to attend two half-day training sessions as an accommodation.
providing qualified readers and interpreters
Jesse is deaf. He will need an interpreter when he is granted an interview for a position as a research assistant for a professor.
altering when or how an essential job function is performed
Brittany has a learning disability and attention deficit disorder. She works as an insurance adjuster. Her duties include data entry of information she obtains from new customers, sales work, writing up policies, and investigating claims. Because of her disability, data entry is difficult for her if she does not do it early in her day when her concentration is at its best. A reasonable accommodation may be to allow her to do the data entry in the morning and her other job duties during the rest of the day.
Joyce is employed as a secretary in a large office. After removal of a brain tumor, she has had difficulty remembering whether or not she has completed assigned tasks. A possible accommodation would be for her supervisor to prepare a written list of daily tasks on which Joyce could "mark off" as she completed tasks. Providing her with a check-off list would be a reasonable accommodation. If other memory problems exist, giving instructions in different formats may be helpful (e.g. written, visual diagrams, verbal instructions, etc.)
Since his stroke, George has had difficulty with his orientation to his surroundings. Although he has made a good recovery, he and his employer were concerned about his ability to return to work delivering mail and packages throughout the plant. The following accommodations were made. He was given a map which also contained written instructions as to his typical mail route. Colored tape was affixed to the floor to show the way to various areas of the plant (i.e., red tape from the mail room to the machine shop; black tape from the mail room to the administration offices, etc.). With these simple accommodations, George was able to successfully return to work.
permitting use of accrued paid leave or unpaid leave for necessary treatment
Dwayne is a waiter who has been diagnosed with cancer. He needs four weeks of leave for chemotherapy and recuperation. Dwayne has two weeks of paid leave that he has not used. Dwayne's employer may offer him an accommodation of using his two weeks paid leave and offering him two weeks of unpaid leave.
A person with a disability may be able to benefit from another law that relates to leave. The Family and Medical Leave Act (FMLA) is a different law that requires employers to provide up to 12 weeks of unpaid leave for treatment of a serious health condition. Contact the U.S. Department of Labor, Co-Ad staff, or a private attorney for more information about the FMLA.
employer assistance getting to and from an inaccessible job site.
Keith applied for and obtained a job in a mall. Keith uses a wheelchair. The store is accessible, but there is no accessible route from the mall to the store. The employer may need to work with management of the mall to provide a ramp or have someone assist Keith to get to the store.
Delia is a lawyer who works in a law firm downtown in a large city. She has a mobility impairment where she can only walk short distances. Because of the lack of accessible parking near the office, she must park at least 4 blocks away. Delia asks her employer for a reserved parking space near the law office as an accommodation.
reassignment to a vacant position
Paul works for a hotel resort as a driver for the hotel's limousine service. He becomes unable to drive following a traumatic brain injury. Paul used his leave to recuperate and wishes to return to work, but is still unable to drive. Because he can no longer perform the driving even with an accommodation, he may need to be reassigned to a vacant position. He is qualified for a position as a bell captain, a maintenance worker, and groundskeeper, all of which are vacant. The company should reassign Paul to one of these positions.
In considering reassignment as an accommodation, an employer
must first look to positions which are comparable in terms of hours, pay, etc.;
may look to less comparable positions if there are no vacancies in comparable positions;
must reassign to a position which is now vacant or is expected to be open in the near future;
does NOT have to bump another employee;
does NOT have to reassign the person to a position which is a promotion; and
does NOT have to create a new position
Because the ADA is a new law, questions arise about what is meant by various provisions of the law. "Bumping" is an unsettled area of the law. It is generally agreed that the ADA does NOT require an employer to terminate a co-worker from his/her job to place a person with a disability in the position. Some have argued that the ADA does require an employer to look to positions that may be held by others and exchange comparable jobs with a co-worker. One court to address this issue has indicated that an exchange of jobs is "bumping" and is not required by the ADA. However, other courts may decide differently.
Reasonable accommodations are also any other change or adaptation that an employee/applicant and employer determine would permit the person with the disability to be able to have an equal employment opportunity, would be a form of reasonable accommodation;
The list of reasonable accommodations is only limited by the creativity of the employer and employee or applicant as well as ideas of outside resources. Designing accommodations is a very individualized process. Accommodations will vary depending upon the unique needs of the employee or applicant and the special circumstances of job duties and employer. Not all people with the same disabilities will have the same limitations or the same degree of limitation. Ideas for different kinds of generic accommodations for different types of disabilities or limitations can be found in the Appendix.
The ADA does not require an employer to always accommodate a person with a disability, even an existing employee. For example, if the accommodation is too burdensome for the employer, an accommodation may not be required. If the person's disability changes and causes greater limitations which make him/her unable to perform the essential functions of his/her job even with an accommodation and there are no vacant positions for which s/he is qualified, an accommodation is not required.
Some examples of requested accommodations that some courts have found to be unreasonable are:
waiting indefinitely for an employee's disability to be treated or corrected (however, the FMLA and accrued leave may give an employee a lengthy time for treatment or recuperation);
providing a smoke-free building for an employee who worked on the 12th floor;
hiring an additional employee to handle the workload of the individual with the disability(1);
permitting an employee with alcoholism to show up for work under the influence of alcohol, drinking alcohol, or excusing alcohol-related misconduct;
converting a temporary light-duty position into a permanent light-duty position(2); and
permitting a person to work at home sporadically when his/her disability makes it difficult to come to the office.
Courts have reached different decisions about whether working at home is a reasonable accommodation for an employer to make for an employee. Given the technology that is becoming available and the trend to allow workers to work at home, it will probably become increasingly available as an option by the employer and employee, unless it would be unduly burdensome in a particular situation. Some positions can be performed at home better than others. Some positions cannot be performed at home either because of the nature of the work or the amount of teamwork or supervision required by their job.
Juan is a waiter at a restaurant and obviously could not work at home because of the nature of his job. Alberta, a catering sales representative at the same restaurant, may be able to work at home part-time to accept business calls about inquiries from prospective customers and ordering food. However, she would need to be at the restaurant to set up for events.
C. When An Employer Must Provide a Reasonable Accommodation
General Requirements
An employer must make a reasonable accommodation to the known physical or mental limitations of a qualified applicant or employee with a disability unless the employer can show that the accommodation would cause an undue hardship on the operation of its business.
an employer is only obligated to accommodate a qualified individual with a disability (See Co-Ad, Inc.'s guide, "An Overview of the Employment Provisions of the ADA" for more information about who is a qualified individual with a disability.)
an employer must also know that the applicant or employee has a mental or physical impairment before the employer is obligated to provide an accommodation.
Reasonable Accommodations May Be Needed in These Three Situations
During the application or interview stage
Steven has a visual disability. He needs someone to read the application form and write his responses on the application or to be able to turn in a prepared resume rather than an application to apply for the position.
In the workplace
Shannon has AIDS. She may need to change her work hours one day per week to go for medical treatment.
Reasonable accommodations of equal benefits and privileges of employment.
Employees with disabilities must have access to lunchrooms, employee lounges, restrooms, meeting rooms, and other employee-provided or sponsored services such as health programs, transportation, and social events. Without such accommodations, an employee with a disability may have no opportunity to enjoy equal benefits and privileges of employment.
Martha uses a wheelchair. She needs the microwave oven in the lunchroom placed on a lower table for use during lunch and breaks.
Michael is deaf. His employer is planning an awards dinner to honor employees who have contributed to the workplace. Michael is being honored. His employer needs to provide an interpreter for the event to accommodate Michael.
The employer's duty to provide reasonable accommodations is ongoing and may arise any time that a person's disability or job changes.
Sandy is a receptionist. She has arthritis. Sandy needs an accommodation of a headset to limit the use of her arm to hold the phone. Later, the company changes the receptionist duties to include extensive typing. She cannot type as much as is required because of her disability. The employer is obligated to consider whether there is a vacant position for which she would be qualified for reassignment.
D. Employer's Consideration
A reasonable accommodation must always take into consideration two factors:
the specific abilities and functional limitations of a particular applicant or employee with a disability; and
the specific functional requirements and essential functions of a particular job.
In considering an accommodation, the focus should be
on the abilities and limitations of the individual to perform a specific task or particular position;
NOT on the name of the disability or a particular physical or mental condition.
The employer is responsible for notifying job applicants and employees of its obligation to provide accommodations for otherwise qualified individuals with a disability.
Limits on employer's duties to accommodate:
An employer is NOT required to lower quality or production standards to make an accommodation.
An employer is NOT obligated to provide personal items as accommodations, such as eye glasses or hearing aids.
An employer is NOT required to provide an accommodation if it will pose an undue hardship on the operation of its business.
An employer is NOT required to hire an individual who poses a "direct threat" to the health or safety of others.(3)
To be considered as a "health or safety risk" the "direct threat" must pose a "significant risk of substantial harm." Risk of harm must be based on valid medical analysis or other objective evidence, and not based on speculation. If a safety risk can be reduced by reasonable accommodation, an employer must provide the accommodation and NOT discriminate against the individual.
The employer's obligation to provide reasonable accommodations apply only to those accommodations that reduce barriers to employment related to a person's disability; it does not apply to accommodations that a disabled person may request for some other reason.
The EEOC Technical Assistance Guide offers this example: an employee whose job requires driving loses her sight. Reassignment to a vacant position that does not require driving would be a reasonable accommodation. However, if a blind computer operator working at an employer's Michigan facility requested reassignment to a facility in Florida because he prefers to work in a warmer climate (which is not required for his medical condition), it would not be a reasonable accommodation required by the ADA since the accommodation requested is not related to the disability.
Karen is a mother of a child with AIDS. Her son becomes ill and she needs leave to be able to help take care of him. Karen is not entitled to a reasonable accommodation of use of unpaid leave under the ADA because she is not seeking leave for her own disability. However, the FMLA may apply to offer her leave and job protection.
Providing an effective accommodation
A reasonable accommodation need not be the "best" accommodation available, but it must be an "effective" accommodation. The accommodation must offer an equal opportunity for the person with the disability to be considered for a job, to perform the essential functions, or to enjoy equal benefits and privileges of the job.
Ramon is a financial planner at a financial services company. He needs a reader to read correspondence and other paperwork. If Ramon's secretary could perform the reading duties in addition to her other duties, a full-time reader would not be necessary under the ADA.
Mary is sent to a training by her company. She has a severe learning disability affecting her reading. She asks for the written materials that are used with the class to be provided on audiotape prior to the class so she can listen in advance. Other training participants are provided their materials two weeks before the class. The company tells Mary she can audiotape the training sessions rather than receive written materials. This is not an effective accommodation because the training sessions only highlight important information in the training materials.
Providing the extraordinary accommodation
In some cases, an employer may be afraid to take extraordinary measures which go beyond the requirements of the ADA to accommodate an employee or applicant. The employer may be afraid that s/he will have to go to those lengths in every case. Several courts who have looked at this question, have found that simply because an employer takes extraordinary measures in one case will not make him/her legally required to repeat these measures in all subsequent cases. The courts believe this would discourage employers from voluntarily bringing more people with disabilities into the workforce.
Yummy Burgers is a national fast-food chain that has a special program to employ people with moderate to severe mental retardation in which crew members with these disabilities are trained on one or two tasks. Generally, crew members must be trained and rotated as needed in about eight different tasks. In this case, Yummy Burgers may be providing greater accommodations than required by the ADA.
Beware of the employer who claims they do not discriminate because they hire people with disabilities. Even an employer who hires people with disabilities may discriminate against people with other disabilities or other people who need accommodations. For example, an employer who has accommodated people with physical disabilities may fail to hire qualified people with mental disabilities; or an employer who has hired one deaf person who does not need an interpreter in his job may refuse to hire another person who is deaf because she will need an interpreter.
E. Steps for Identifying and Providing a Reasonable Accommodation
The steps that the employer and the individual with a disability take to determine an accommodation should be informal and interactive. These steps will probably include the following:
Notice of Employer's Accommodation Obligation
The employer is responsible for notifying job applicants and employees of its obligation to provide accommodations for otherwise qualified individuals with disabilities.
Employers are required to post notices containing the provisions of the ADA, including the reasonable accommodation obligation, in employment offices and other common places where employees and applicants can readily see them. EEOC provides posters to employers for this purpose.
Employee Request or Employer Inquiry for Accommodation
A "qualified individual with a disability" may request the need for an accommodation or the employer may ask an employee whether the employee needs an accommodation.
If the disability is a "hidden" disability and unknown to the employer, the applicant or employee with a disability is responsible for making the need of an accommodation known to his/her employer.
The applicant or employee with a disability is probably not required to request a specific accommodation, but must only let the employer know that an adjustment or change is needed to do a job because of the limitations caused by a disability. If the applicant or employee knows of an accommodation(s) s/he believes would be reasonable and effective, s/he should suggest those accommodations. If the applicant or employee does not know the accommodation that would be effective, s/he can ask for the assistance of the employer and outside resources. The request should be made in writing. See the Appendix for a sample request.
Documentation of the Need for an Accommodation
If an applicant or employee requests an accommodation where the need for the accommodation is not obvious, or if the employer does not believe that the accommodation is needed, the employer may request documentation of the individual's functional limitations to support the request.
The ADA requires both the employer and the employee to act in good faith in the accommodation process. Both the employee and the employer should cooperate in providing information necessary to design accommodations.
An employer may ask for written documentation from a doctor, psychologist, rehabilitation counselor, occupational or physical therapist, independent living specialist, or other professional with knowledge of the person's functional limitations.
Employers need to be reasonable about their requests for documentation from qualified professionals. Giving short deadlines for providing documentation is an example of not acting in good faith. Providing a specific release of documentation is usually recommended rather than a general release of information of all medical information. Employers need to know enough information to verify that the individual has a disability and needs accommodations because of the disability.
Before signing a general release, a person should get legal advice.
See the form for obtaining disability documentation and sample of medical documentation in the Appendix.
Evaluate the Particular Job to Determine its Purpose and Essential Functions
Evaluations of essential job functions outlined in a position's "job description" are helpful in reexamining the specific job to determine or confirm the position's essential functions and requirements.
Discussion with the Individual with a Disability for Specific Physical or Mental Abilities and Limitations
An appropriate accommodation may not be easily identified by the employer or the individual alone. The employer may not know enough about the individual's functional limitations in relation to specific job functions, and the individual requesting the accommodation may not know enough about the equipment being used or about the job duties or worksite to suggest an accommodation. The employer and individual with a disability should work together in "partnership" to identify the appropriate accommodation.
This "partnership" between the employer and the qualified individual with a disability can identify
the barriers to the job performance in meeting the essential job functions of the position;
possible effective solutions through accommodations.
If the employer and employee/applicant can not identify an effective and reasonable accommodation, technical resources are available to assist in identifying potential accommodations. See Section 8 in this Guide for examples of technical resources for designing reasonable accommodations.
Right to Refuse
An employee may refuse an accommodation offered by an employer. However, if the employer offered the individual an effective accommodation that would have provided an equal employment opportunity to the employee and the person's performance is substandard without the accommodation, the employer may generally evaluate the employee's performance without the accommodation.
If an employer offered an effective accommodation and the employee did not want the accommodation, the employee may be able to provide his/her own accommodation as an option.
If an applicant or employee is offered an accommodation which s/he believes would be ineffective, s/he should let the employer know why the accommodation is not effective and explain why the alternative accommodation would be effective. This should be put in writing.
Giving the Employee or Applicant an Option of Providing an Accommodation that Would Otherwise Be Too Burdensome for the Employer.
An employer is not required to provide an accommodation if it will impose an "undue hardship" on the operation of its business. "Undue hardship" is an accommodation that is: "excessively costly, extensive, substantial, or disruptive, or what would fundamentally alter the nature or operation of the business."
Factors to look at when deciding whether an accommodation is too burdensome:
The nature and cost of the accommodation in relation to the size of the business.
The nature and cost of the accommodation in relation to the financial resources of the business.
The nature and cost of the accommodation in relation to the nature and structure of the employer's operation. An employer may consider the impact of an accommodation on the ability of other employees to do their jobs.
The impact of the accommodation on the specific facility providing the accommodation.
For example, the cost of providing specialized computer software needed by a person with cerebral palsy might be too high for a small bookkeeping firm, but not too costly for a large company or government agency.
An employer may not consider as "undue hardship" the fears, prejudices, or resentment toward an individual's disability. The employer must still provide the requested accommodation despite:
Negative impact on morale or other employees.
Complaints from a co-worker about specific reasonable accommodations, such as a flexible schedule.
"Disruption" due to employees' fears, or prejudices toward, a person's disability.
For example, an employer refuses to hire a person with a disability who needs a part-time schedule not because the schedule would be too disruptive to the company's operations, but because her co-workers might resent that she has a part-time schedule. In this case, the refusal to accommodate violates the ADA.
The terms of a collective bargaining agreement may be relevant in determining whether an accommodation would impose an undue hardship. Since both the employers and unions are covered entities under the ADA, both should work together to develop collective bargaining agreements that do not have terms that discriminate against people with disabilities.
Some courts have decided that an accommodation that conflicts with a term of the collective bargaining agreement is not a reasonable accommodation. However, other courts have determined that the terms of a collective bargaining agreement should be taken into consideration, but whether the accommodation is reasonable should be decided on a case-by-case basis. Some accommodations that conflict with a term of the agreement will still be considered reasonable. So far, courts have been reluctant to require employers to provide reasonable accommodations to a person with a disability that would interfere with the bona fide seniority rights of another worker. However, other provisions in a collective bargaining agreement are more likely to be waived to permit an accommodation.
If the only accommodation possible is too burdensome for the employer, there may be several options that remain available to provide the applicant or employee with the necessary accommodations.
a. Other Funding Sources. State vocational rehabilitation services provide full and partial funding for job accommodation equipment and devices on a case-by-case basis. Various community-based, non-profit and charitable organizations may have monies available. The individual requesting the accommodation should work in "partnership" with the employer to investigate such government and private funding sources available to them. If the accommodation needed is obtaining equipment or devices, see Co-Ad's guides on assistive technology for other funding sources.
b. Applicant/Employee Pays the Difference. If there is no funding available from other sources, the applicant or employee with the disability should be offered the option of paying for the portion of the cost that makes the accommodation too burdensome. The employer would pay the amount toward the accommodation that is not too costly and the applicant or employee with the disability hardship pays for the difference or remainder of the cost of the accommodation that is beyond the employer's "hardship amount."
c. See the Appendix of this guide for a summary of financial incentives for employers to provide accommodations.
Technical Assistance
Many sources of technical assistance are available to help employees and employers in the accommodations for people with different disabilities in various job situations. Many of these resources are free. Some of those sources include:
Job Accommodation Network
(800) 526-7234 (Voice/TDD)
(800) DIAL-JAN (Computer Bulletin Board)
http://janweb.icdi.wvu.edu
(Provides specialized assistance in developing workplace accommodations.)ADA Regional (Pacific) Disability and Business Technical Assistance Center Hotline
(800) 949-4232 (Voice/TDD)
(510) 465-7885 (Fax)
(Provides information about legal requirements of the ADA, publication list, and training.)Idaho Assistive Technology Project
(800) 432-8324
(Provides information about assistive technology for people with disabilities.)Easter Seal Society
(800) 627-7889
(Provides information about assistive technology for people with disabilities.)United Cerebral Palsy Association (UCPA)
(208) 377-8070
(Provides information about assistive technology for people with disabilities.)Sign Language Interpreters - Independent Living Centers should have a list.
Sample Lists of Generic Accommodations
For persons who are deaf or hard of hearing.(4)
Inter- and Intra-Office Communication:
Ensure the availability of Text Telephones (TT's, also commonly referred to as TDD's or TTY's), amplification devices, or other appropriate assistive listening devices (ALDs) to help facilitate communication between other employees or customers; or
Use state telecommunication relay services, where an intermediate person receives verbal information and types it to the person using a TT. The "800" toll free phone numbers for these services are listed in local phone directories
Consider E-mail or faxes for intra and interoffice customer communications
Provided visual or tactile pagers for communication, instructions, and as an alerting system
Share information via networked computers
Use computer notetaking
Safety:
Provide visual and auditory alerting devices on telephones and fire alarm systems
Trainings and Meetings
Utilize assistive listening devices such as FM, infrared, loop systems, and/or closed-captioned decoders in meeting and training sessions
Try real-time captioning for meetings and training sessions (simultaneously captioning as speaker speaks)
Caption video training materials
Ensure that all rooms used for meetings or training are adequately lighted
Use professional interpreters (oral and/or sign) when needed
Consider "communication cops" at meetings (one person who monitors the meeting to ensure that only one person speaks at a time)
Multiple strategies include use of professional interpreters (sign or oral), computers, ALDs, and other appropriate strategies
For persons who are blind or visually impaired:(5)
During the application and interview process:
Mail the application to the candidate who requests it
Offer the walk-in applicant an opportunity to take the form, have someone help complete it, and return it by mail or in person
Offer the services of someone in the office to assist in completing the form
Ask if he or she needs directions if someone is driving
If the candidate is taking public transportation, indicate which stop is closest, then give directions from the stop
Offer assistance from the reception area to your office by asking, "Would you like to take my arm?" If the person needs to, he or she will lightly grasp your arm just above your elbow and will follow one step behind you. Don't insist on helping, and certainly, don't push the person ahead of you. If the person uses a dog guide, the dog will follow you. Do not pet or distract the dog.
When you get to your office, place the person's hand on the back of the chair you are offering. Do not push the person into a chair.
Many reasonable accommodations do not have to be fancy or expensive.
Dot of silicon on a knob, switch, or button permits a person to align controls on a machine.
Wide felt-tip marker may make file folder labels readable
Braille labels on the soft drink machine gives braille user equal access to flavor choice.
Different size strips of masking tape identify parts bins for production employees.
Computers can be modified to provide enlarged screen display, synthesized voice, or braille output.
Screen text enlargers use software to enlarge print on a computer screen up to several inches high.
A tactile representation board allows a person with vision loss to touch a tablet and a synthesized voice reads the word that is at the corresponding point on the screen.
For persons who have cognitive disabilities:(6)
Recruitment, Job Application and Interview process:
Simplifying and minimizing working on the job application
Clarification and assistance in completing information needed on the job application
Conducting a verbal interview to obtain job application information that may be more complex in nature and difficult to put in writing
Describing job requirements clearly, concisely and simply; showing the person the job
Adjusting length of interview to maximize applicants ability to remain attentive and decrease stress level
Interviewing in a quiet, informal, distraction-free environment
Using multiple formats to advertise job postings, such as newspaper and radio advertising.
Job training:
Spend additional time in training the new employee
Break job tasks down into smaller steps which are more clearly defined
Use very clear and basic language to provide job instructions
Develop a set routine in a job
Develop a consistent work sequence
Allow the employee to use alarm watches or timers
Develop pictures or diagrams showing job sequence to assist in learning tasks
Teach the employee with the disability how to follow the example of co-workers to learn work routines and appropriate work behaviors
Encourage co-worker involvement in ongoing support, if needed.
For people with psychiatric disabilities:(7)
(This section from "Accommodation Ideas for Persons with Psychiatric Disabilities" was divided into the following categories. Not all people with psychiatric disabilities will have these limitations or need all of these accommodations. People with different disabilities (such as learning disabilities and cognitive disabilities) with any of these limitations, may also benefit from the following ideas.)
Maintaining energy levels during the workday:
Flexible scheduling
Allow longer or more frequent breaks (but still require an 8-hour work day)
Provide additional time to learn new responsibilities
Provide self-paced workload
Provide backup coverage for when the employee needs to take breaks
Allow for time off for counseling
Allow for use of supportive employment and job coaches (often available through other agencies)
Allow employee to work from home during part of the day
Provide for job sharing opportunities
Part time work schedules
Maintain concentration:
Reduce distractions in the work area
Provide space enclosures or a private office
Allow for use of white noise or environmental sound machines
Increase natural lighting or provide full spectrum lighting
Allow the employee to work from home and provide necessary equipment
Plan for uninterrupted work time
Allow for frequent breaks
Divide large assignments into small tasks and steps
Restructure job to include only essential functions
Staying organized and meeting deadlines:
Make daily TO DO lists and check items off as they are completed
Use several calendars to mark meetings and deadlines
Remind employee of important deadlines
Use electronic organizers
Divide large assignments into smaller tasks and steps
Working effectively with supervisors:
Provide positive praise and reinforcement
Provide written job instructions
Write clear expectations of responsibilities and the consequences of not meeting them
Allow for open communication to managers and supervisors
Establish written long term and short term goals
Develop strategies to deal with problems before they arise
Provide written work assignments
Develop a procedure to evaluate the effectiveness of the accommodation
Handling stress and emotions:
Provide praise and positive reinforcement
Refer to counseling and employee assistance programs
Allow telephone calls during work hours to doctors and others for needed support
Provide sensitivity training to co-workers
Utilize peer supports
Attendance issues:
Provide flexible leave for health problems
Provide a self-paced work load and flexible hours
Allow employee to work from home
Provide part-time work schedule
Changes in the workplace:
Recognize that a change in the office environment or of supervisors may be difficult for a person with a psychiatric disability
Maintain open channels of communication between the employee and the new and old supervisor in order to ensure an effective transition
Provide weekly or monthly meetings with the employee to discuss workplace issues and production levels
For individuals in recovery from a drug or alcohol problem:(8)
Work Accommodations:
A modified work schedule to permit an employee to pick up her daily methadone dosage or to attend an out-patient relapse prevention counseling session
Job restructuring to relieve an employee of particular marginal tasks that may compromise recovery or be inappropriate in the early stages of recover
Temporary reassignment of an employee in a safety-related position to a vacant non-safety sensitive position while he or she completes treatment
Unpaid leave to permit an individual with a current alcohol impairment to attend an in-patient treatment program
For persons with attention deficit disorder(9)
Reducing distraction in the work space
Giving instructions clearly - both orally and in writing
Breaking large tasks down into more manageable parts
Providing structure in long term tasks (checklists, deadlines for each stage, periodic meetings with supervisors)
Frequent and specific feedback on meeting performance expectations
Extra clerical support
Making accessible audio and video equipment
Accommodations in examinations (extra time, quiet room, alternative format where appropriate) and in training programs (tape recorder, repetition, time for questions, supervised practice)
Modified work schedules and job restructuring
For persons who have physical disabilities (with limited mobility, use wheelchair, or mobility aids):
Move clutter in hallways to give room for people to use wheelchair or mobility aids
Install door knobs with levers rather than round knobs
Build or use portable ramps to ramp stairs
Provide reserved parking near the entrance/exit that person uses
Check lunchroom and make changes to ensure access
Make sure work area is large enough for wheelchair, including turnaround space
Plan training events and company social events in an accessible location
Install grab bars in the restroom and, if necessary, enlarge stalls
Remember, not all people with the same condition will need the same accommodations. These are ideas only. Each situation calls for an individual assessment.
Sample Form #1 for Employee or Applicant to Request Reasonable Accommodation
*Ask your employer if s/he has a form, if no form is available, use a memorandum or letter format.
TO: Human Resources Director
FROM: (Individual Requesting Accommodation)
RE: Americans with Disabilities Act Accommodation Request
DATE: (Date of Request)
I am employed by the company as a . I need an accommodation(s) to be able to perform my job duties because of a disability. I have the following condition: . This condition affects me in the following way(s): .
Based on my experience with my disability, I believe I need the following accommodation(s): .
I would like to meet with you to discuss an accommodation plan which would include this accommodation(s) or other effective accommodations.
If you need any medical documentation regarding my condition or the need for accommodations, please let me know.
(I have attached some information about accommodations for your review.)
Sample Form #2 for Employee or Applicant to Request Reasonable Accommodations
TO: Iman Charge, HR Director
FROM: Augusta T. Employee
RE: Americans with Disabilities Act Accommodation Request
DATE: (Put in the current date)
I was recently hired by the company as a cashier sales associate at Bull's-eye Store in Twin Falls. I need accommodations to be able to perform my job duties because of a disability. I have a spinal cord injury. As a result, I use a wheelchair. I have full use of my arms, but cannot walk even short distances.
Based on my experience with my disability, I believe I need the following accommodations while working at Bull's-eye Store:
-modification to my cashier station (i.e. lower the ledge on which the cash register rests and cut a bigger opening to accommodate my chair; if I am assigned to one station, it would eliminate the need to modify other stations); and
-provide a reaching device which costs about $40.00.
If you need any medical documentation regarding my condition or the need for accommodations, please let me know.
I have attached some information from the Job Accommodation Network (Jan) about how cashier stations were modified by another chain of stores. You can call JAN for further information. It is a free resource for employers. Their telephone number is (800) 526-7234.
Guide for Obtaining Documentation of Disability/Accommodation
The documentation should include:
the nature of the impairment
how the impairment substantially limits at least one major life activity. Examples of major life activities include, but are not limited to:
hearing
walking
seeing
lifting
learning
performing manual tasks
working (a wide class of jobs, not just a single job)(Do not evaluate "working" unless no other activity is limited)
a statement that the person needs an accommodation related to his/her disability
the type of accommodation needed or recommended (optional)
The documentation may be provided by a:
doctor
independent living specialist
psychologist
physical therapist
rehabilitation counselor
occupational therapist
other professional with knowledge of disability and functional limitations
has the following physical/mental impairment: . The impairment causes functional limitations in the major life activity(ies) of . S/he is impaired in the areas in the following ways: . She is a qualified individual with a disability. As a result s/he needs an accommodation(s) in the workplace because of his/her disability. I recommend the following accommodation(s): .
Signature of Professional and Credentials
Sample Use of Form for Documentation
Joseph Jones has a physical impairment consisting of a spinal cord injury. He has paraplegia resulting in paralysis of his legs, but does have full use of his arms and hands. The physical impairment causes significant functional limitations in the major life activity of walking. He is unable to walk and uses a wheelchair. Joseph Jones is an individual with a disability according to the definition of the ADA.
As a result, he will need some accommodations in the workplace because of his disability. Generally, he will need an accessible worksite and ramp into the building where his worksite is located.
I am a vocational rehabilitation counselor who has worked with Mr. Jones. I would be able to offer you some specific recommendations on how to make his worksite accessible.
Call me at my office at 123-4567.
Sincerely,
Case worker
Vocational Counselor
Financial Assistance to Employer for Accommodations
Several sources of financial assistance are available to help employers make accommodations and comply with ADA requirements.
Tax Credit for Small Business. Under Section 44 of the Internal Revenue Code, a special tax credit is available for smaller employers up to $5,000 per year for accommodations made in compliance with the ADA. The credit is available for one-half the cost of "eligible access expenditures" that are more than $250 but less than $10,250.
An eligible "small business" includes one in which gross receipts are equal to $1 million or less for the taxable year, or the business has 30 or fewer full time employees.
Eligible "access expenditures" for which the tax credit applies includes accommodations under Title I and accessibility requirements for commercial facilities and places of public accommodation under Title III.
Tax Deduction for Architectural and Transportation Barrier Removal. Under Section 190 of the Internal Revenue Code, any business may take a full tax deduction, up to $15,000 per year, for expenses of removing architectural barriers or transportation barriers.
Expenses covered include cost of removing barriers created by steps, narrow doors, inaccessible parking spaces, toilet facilities, and transportation vehicles.
Both the "tax credit" and "tax deduction" are available to eligible small businesses.
1. This is different than hiring an interpreter, reader, or in some cases, an aide to assist a person with a disability. These all are forms of reasonable accommodations.
2. Although creating a light duty position as an accommodation is probably not required by the ADA, an employer who has a light duty program cannot discriminate on the basis of disability in making light duty assignments.
3. "Direct safety threat" is another unsettled area of the law. The ADA itself only gives employers a defense when an employee with a disability poses a direct safety threat to others and does not include language about a safety threat to him/herself. However, the EEOC and some courts have interpreted the defense to include a direct safety threat to self and others. Other courts have allowed the defense to be raised when there is a threat to others.
4. These accommodations are excerpts from publications prepared by the Program on Employment and Disability, New York State School of Industrial and Labor Relations (ILR), Cornell University, January 1994.
5. See footnote #4.
6. See footnote #4.
7. These accommodations are excerpts from the publication, "Accommodation Ideas for Persons with Psychiatric Disabilities," Job Accommodation Network, A Service of The President's Committee on Employment of People with Disabilities. Call 1-800-DIAL-JAN for a list of publications.
8. See footnote #4.
9. These accommodations are excerpts from the publication, "Attention Deficit Disorder in the Workplace," National Center for Law and Learning Disabilities. Contact Co-Ad, Inc. for a list of other publications.
Printing of this document was funded by grants administered by the Department of Education, Rehabilitation Services Administration, Administration on Developmental Disabilities, and National Institute of Mental Health.
The legal information contained in this guide does not necessarily reflect the views of Comprehensive Advocacy, Inc.'s funding sources. The information is also subject to changes in the laws and the reader should research current laws before acting upon the information. Reprinted 7/99