As an attorney supporting employers, I get lots of calls and emails about one particularly challenging subject. One fly in employers’ ointment. One hair in the proverbial HR compliance soup. That’s it; you’ve guessed it! It’s the Americans With Disabilities Act (ADA).
Many employers struggle with meshing what seem to be common sense policies and practices with the ADA’s seemingly myriad statutory requirements. In this article, we will address a few common questions about the process of an employee with a disability requesting an accommodation and an employer initially responding to that request, along with answers and examples to get you going in the right direction.[1]
Q1. Does an employee have to make a “formal request” for an accommodation under the ADA for it to “count?”
A1. No; there are no magic words or required form for an ADA request. An employee may use “plain English” and does not need to mention the words “reasonable accommodation” or the ADA. Someone other than the employee (like a representative or health professional) may request an accommodation on behalf of the individual (even though the individual with a disability may refuse it). In addition, the request does not need to be in writing nor occur at any specific time. Once a request is made, employers must act to meet legal obligations.
Ex1a. An employee tells her supervisor, “I may need to leave work early on Thursdays for the next three months to get medical treatments” or “My new prosthesis doesn’t fit in my work station.” These are both requests for reasonable accommodation.
Ex1b. An employee’s spouse calls an employer to say that the employee was in a horrible car accident and is hospitalized for a period. This is a request for reasonable accommodation.
Q2. When does the “interactive process” begin and what is that process?
A2. Beginning right after an employee’s request for accommodation, it’s really an ongoing conversation between employer and employee that includes determining what the employee needs by identifying problems posed by a workplace barrier and how possible accommodation will prove effective in eliminating or reducing that barrier. Both employer or employee can offer options and request clarification.
Ex2. An employee asks his supervisor for a change in office setup because of back problems. The supervisor routes the request to HR, which then meets with the employee to discuss problems with the employee’s current setup and to brainstorm ideas about possible effective accommodations (e.g., more breaks, a stand-up desk, or a different chair) to enable the employee to better perform the essential functions of his position.
Q3. May I ask for documentation from the employee to substantiate her request for accommodation?
A3. Even though employers may choose to simply discuss and agree to accommodations with the employee, employers are absolutely entitled to substantiating documentation, and I would recommend that this always be part of your process (unless the disability and need for accommodation are obvious or if the individual has provided sufficient information previously). Documentation requests should specify what types of information the employer needs regarding the disability, its functional limitations, and the need for reasonable accommodation. Always send a copy of the employee’s job description along with the request so the health care provider understands the daily requirements of the employee’s position.
Employers may also require an employee to go to a health care professional of the employer’s choice if the employee fails to provide sufficient information from her treating physician (i.e., that specifies the existence of an ADA disability and explains the need for reasonable accommodation). Any medical examination conducted by an employer’s choice of physician must be paid for by the employer and be job-related and consistent with business necessity (limited to determining the existence of an ADA disability and the functional limitations that require reasonable accommodation).
Ex3a. A maintenance employee tells HR that he can’t climb ladders or stairs because of an off-the-job leg injury. Since the injury isn’t apparent, the employer may ask for documentation from a health care professional describing the impairment, its nature, severity, and duration, what activities it limits, and the extent to which it affects specific job tasks.
Ex3b. An employee asks for extra breaks due to fatigue from lupus. However, the employee provides insufficient or vague documentation (for example, only a handwritten letter of dubious origin), but keeps asking for the breaks. The employer may choose to send her for a medical examination to determine whether a disability exists and what the employee’s functional limitations are as related to her position.
Q4. Are employers required to give employees exactly what they request?
A4. No; an employer may choose among multiple reasonable accommodations so long as the chosen one is effective, even if it is the least expensive or easiest to provide. Although an employee’s preference should be given consideration, a recommended part of the accommodation process includes an employer offering alternatives.[2]
Ex4. An employee with dyslexia has great difficulty reading but has no difficulty understanding oral communication. The employee requests the employer provide an expensive computer program to read all company memoranda to him. The employer asks whether a recorded message of the memoranda would accomplish the same objective, and the employee agrees that it would. Since both accommodations are effective, the employer may choose to provide the inexpensive recorded messages.
The ins and outs of ADA requests can be complicated and confusing. To bolster your comfort levels with this topic, contact Soule Employment Law Firm at 984-242-0771.
Legal Disclaimer: Jenny Sweet is licensed in the state of North Carolina and this article discusses general principles of North Carolina and federal law. It should not be considered legal advice for a particular factual setting and does not create an attorney-client relationship.
[1] For the purposes of this article, employees making requests are assumed to meet the definition of qualified individuals with disabilities.
[2] Reasonable accommodations must be supplied absent undue hardship, which must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense. Undue hardship is based on several factors and is often very difficult to prove.