>From the web page
http://www.eeoc.gov/docs/accommodation.html

The U.S. Equal Employment Opportunity Commission

Enforcement Guidance:
Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act

Table of Contents

Introduction

General Principles

Requesting Reasonable Accommodation

Reasonable Accommodation And Job Applicants

Reasonable Accommodation Related To The Benefits And Privileges
Of Employment

Types Of Reasonable Accommodations Related To Job Performance

     Job Restructuring

     Leave

     Modified Or Part-Time Schedule

     Modified Workplace Policies

     Reassignment

Other Reasonable Accommodation Issues

Undue Hardship Issues

Instructions For Investigators

Appendix: Resources For Locating Reasonable Accommodations

Index


Enforcement Guidance:
Reasonable Accommodation And Undue Hardship
Under The Americans With Disabilities Act

INTRODUCTION

This Enforcement Guidance clarifies the rights and
responsibilities of employers and individuals with disabilities
regarding reasonable accommodation and undue hardship. Title I
of the ADA requires an employer to provide reasonable
accommodation to qualified individuals with disabilities who are
employees or applicants for employment, except when such
accommodation would cause an undue hardship. This Guidance sets
forth an employer's legal obligations regarding reasonable
accommodation; however, employers may provide more than the law
requires.

This Guidance examines what "reasonable accommodation" means and
who is entitled to receive it. The Guidance addresses what
constitutes a request for reasonable accommodation, the form and
substance of the request, and an employer's ability to ask
questions and seek documentation after a request has been made.

The Guidance discusses reasonable accommodations applicable to
the hiring process and to the benefits and privileges of
employment. The Guidance also covers different types of
reasonable accommodations related to job performance, including
job restructuring, leave, modified or part-time schedules,
modified workplace policies, and reassignment. Questions
concerning the relationship between the ADA and the Family and
Medical Leave Act (FMLA) are examined as they affect leave and
modified schedules. Reassignment issues addressed include who is
entitled to reassignment and the extent to which an employer
must search for a vacant position. The Guidance also examines
issues concerning the interplay between reasonable
accommodations and conduct rules.

The final section of this Guidance discusses undue hardship,
including when requests for schedule modifications and leave may
be denied.

GENERAL PRINCIPLES

Reasonable Accommodation

Title I of the Americans with Disabilities Act of 1990 (the
"ADA") (1) requires an employer (2) to provide reasonable
accommodation to qualified individuals with disabilities who are
employees or applicants for employment, unless to do so would
cause undue hardship. "In general, an accommodation is any
change in the work environment or in the way things are
customarily done that enables an individual with a disability to
enjoy equal employment opportunities." (3) There are three
categories of "reasonable accommodations":

     "(i) 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

     (ii) 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

     (iii) 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."(4)

The duty to provide reasonable accommodation is a fundamental
statutory requirement because of the nature of discrimination
faced by individuals with disabilities. Although many
individuals with disabilities can apply for and perform jobs
without any reasonable accommodations, there are workplace
barriers that keep others from performing jobs which they could
do with some form of accommodation. These barriers may be
physical obstacles (such as inaccessible facilities or
equipment), or they may be procedures or rules (such as rules
concerning when work is performed, when breaks are taken, or how
essential or marginal functions are performed). Reasonable
accommodation removes workplace barriers for individuals with
disabilities.

Reasonable accommodation is available to qualified applicants
and employees with disabilities.(5) Reasonable accommodations
must be provided to qualified employees regardless of whether
they work part-time or full-time, or are considered
"probationary." Generally, the individual with a disability must
inform the employer that an accommodation is needed. (6)

There are a number of possible reasonable accommodations that an
employer may have to provide in connection with modifications to
the work environment or adjustments in how and when a job is
performed. These include:

  * making existing facilities accessible;

  * job restructuring;

  * part-time or modified work schedules;

  * acquiring or modifying equipment;

  * changing tests, training materials, or policies;

  * providing qualified readers or interpreters; and

  * reassignment to a vacant position.(7)

There are several modifications or adjustments that are not
considered forms of reasonable accommodation. An employer does
not have to eliminate an essential function, i.e., a fundamental
duty of the position. This is because a person with a disability
who is unable to perform the essential functions, with or
without reasonable accommodation,(8) is not a "qualified"
individual with a disability within the meaning of the ADA. Nor
is an employer required to lower production standards -- whether
qualitative or quantitative(9) -- that are applied uniformly to
employees with and without disabilities. However, an employer
may have to provide reasonable accommodation to enable an
employee with a disability to meet the production standard.
While an employer is not required to eliminate an essential
function or lower a production standard, it may do so if it
wishes.

An employer does not have to provide as reasonable
accommodations personal use items needed in accomplishing daily
activities both on and off the job. Thus, an employer is not
required to provide an employee with a prosthetic limb, a
wheelchair, eyeglasses, hearing aids, or similar devices if they
are also needed off the job. Furthermore, an employer is not
required to provide personal use amenities, such as a hot pot or
refrigerator, if those items are not provided to employees
without disabilities. However, items that might otherwise be
considered personal may be required as reasonable accommodations
where they are specifically designed or required to meet
job-related rather than personal needs. (10)

A modification or adjustment satisfies the reasonable
accommodation obligation if it is "effective." (11) In the
context of job performance, this means that a reasonable
accommodation enables the individual to perform the essential
functions of the position. Similarly, an effective accommodation
will enable an applicant with a disability to have an equal
opportunity to participate in the application process and to be
considered for a job. Finally, a reasonable accommodation will
be effective if it allows an employee with a disability an equal
opportunity to enjoy the benefits and privileges of employment
that employees without disabilities enjoy.

     Example A: An employee with a hearing disability must
     be able to contact the public by telephone. The
     employee proposes that he use a TTY(12) to call a
     relay service operator who can then place the
     telephone call and relay the conversation between the
     parties. This is a reasonable accommodation because it
     is effective. It enables the employee to communicate
     with the public.

     Example B: A cashier easily becomes fatigued because
     of lupus and, as a result, has difficulty making it
     through her shift. The employee requests a stool
     because sitting greatly reduces the fatigue. This
     reasonable accommodation is effective because it
     removes a workplace barrier -- being required to stand
     -- and thus gives the employee the opportunity to
     perform as well as any other cashier.

The term "reasonable accommodation" is a term of art that
Congress defined only through examples of changes or
modifications to be made, or items to be provided, to a
qualified individual with a disability. The statutory definition
of "reasonable accommodation" does not include any quantitative,
financial, or other limitations regarding the extent of the
obligation to make changes to a job or work environment. (13)
The only statutory limitation on an employer's obligation to
provide "reasonable accommodation" is that no such change or
modification is required if it would cause "undue hardship" on
the employer.(14) Undue hardship addresses quantitative,
financial, or other limitations on an employer's ability to
provide reasonable accommodation.

Undue Hardship

"Undue hardship" means significant difficulty or expense and
focuses on the resources and circumstances of the particular
employer in relationship to the cost or difficulty of providing
a specific accommodation. Undue hardship refers not only to
financial difficulty, but to reasonable accommodations that are
unduly extensive, substantial, or disruptive, or those that
would fundamentally alter the nature or operation of the
business.(15) An employer must assess on a case-by-case basis
whether a particular reasonable accommodation would cause undue
hardship. The ADA's "undue hardship" standard is different from
that applied by courts under Title VII of the Civil Rights Act
of 1964 for religious accommodation.(16)

REQUESTING REASONABLE ACCOMMODATION

  * How must an individual request a reasonable accommodation?

When an individual decides to request accommodation, the
individual or his/her representative must let the employer know
that s/he needs an adjustment or change at work for a reason
related to a medical condition. To request accommodation, an
individual may use "plain English" and need not mention the ADA
or use the phrase "reasonable accommodation." (17)

     Example A: An employee tells her supervisor, "I'm
     having trouble getting to work at my scheduled
     starting time because of medical treatments I'm
     undergoing." This is a request for a reasonable
     accommodation.

     Example B: An employee tells his supervisor, "I need
     six weeks off to get treatment for a back problem."
     This is a request for a reasonable accommodation.

     Example C: A new employee, who uses a wheelchair,
     informs the employer that her wheelchair cannot fit
     under the desk in her office. This is a request for
     reasonable accommodation.

     Example D: An employee tells his supervisor that he
     would like a new chair because his present one is
     uncomfortable. Although this is a request for a change
     at work, his statement is insufficient to put the
     employer on notice that he is requesting reasonable
     accommodation. He does not link his need for the new
     chair with a medical condition.

While an individual with a disability may request a change due
to a medical condition, this request does not necessarily mean
that the employer is required to provide the change. A request
for reasonable accommodation is the first step in an informal,
interactive process between the individual and the employer. In
some instances, before addressing the merits of the
accommodation request, the employer needs to determine if the
individual's medical condition meets the ADA definition of
"disability," (18) a prerequisite for the individual to be
entitled to a reasonable accommodation.

  * May someone other than the individual with a disability
    request a reasonable accommodation on behalf of the
    individual?

Yes, a family member, friend, health professional, or other
representative may request a reasonable accommodation on behalf
of an individual with a disability.(19) Of course, the
individual with a disability may refuse to accept an
accommodation that is not needed.

     Example A: An employee's spouse phones the employee's
     supervisor on Monday morning to inform her that the
     employee had a medical emergency due to multiple
     sclerosis, needed to be hospitalized, and thus
     requires time off. This discussion constitutes a
     request for reasonable accommodation.

     Example B: An employee has been out of work for six
     months with a workers' compensation injury. The
     employee's doctor sends the employer a letter, stating
     that the employee is released to return to work, but
     with certain work restrictions. (Alternatively, the
     letter may state that the employee is released to
     return to a light duty position.) The letter
     constitutes a request for reasonable accommodation.

  * Do requests for reasonable accommodation need to be in
    writing?

No. Requests for reasonable accommodation do not need to be in
writing. Individuals may request accommodations in conversation
or may use any other mode of communication.(20) An employer may
choose to write a memorandum or letter confirming the
individual's request. Alternatively, an employer may ask the
individual to fill out a form or submit the request in written
form, but the employer cannot ignore the initial request. An
employer also may request reasonable documentation that the
individual has an ADA disability and needs a reasonable
accommodation. (See Question 6).

  * When should an individual with a disability request a
    reasonable accommodation?

An individual with a disability may request a reasonable
accommodation at any time during the application process or
during the period of employment. The ADA does not preclude an
employee with a disability from requesting a reasonable
accommodation because s/he did not ask for one when applying for
a job or after receiving a job offer. Rather, an individual with
a disability should request a reasonable accommodation when s/he
knows that there is a workplace barrier that is preventing
him/her, due to a disability, from effectively competing for a
position, performing a job, or gaining equal access to a benefit
of employment. (21) As a practical matter, it may be in an
employee's interest to request a reasonable accommodation before
performance suffers or conduct problems occur.

  * What must an employer do after receiving a request for
    reasonable accommodation?

The employer and the individual with a disability should engage
in an informal process to clarify what the individual needs and
identify the appropriate reasonable accommodation. (22) The
employer may ask the individual relevant questions that will
enable it to make an informed decision about the request. This
includes asking what type of reasonable accommodation is needed.

The exact nature of the dialogue will vary. In many instances,
both the disability and the type of accommodation required will
be obvious, and thus there may be little or no need to engage in
any discussion. In other situations, the employer may need to
ask questions concerning the nature of the disability and the
individual's functional limitations in order to identify an
effective accommodation. While the individual with a disability
does not have to be able to specify the precise accommodation,
s/he does need to describe the problems posed by the workplace
barrier. Additionally, suggestions from the individual with a
disability may assist the employer in determining the type of
reasonable accommodation to provide. Where the individual or the
employer are not familiar with possible accommodations, there
are extensive public and private resources to help the employer
identify reasonable accommodations once the specific limitations
and workplace barriers have been ascertained. (23)

  * May an employer ask an individual for documentation when the
    individual requests reasonable accommodation?

Yes. When the disability and/or the need for accommodation is
not obvious, the employer may ask the individual for reasonable
documentation about his/her disability and functional
limitations.(24) The employer is entitled to know that the
individual has a covered disability for which s/he needs a
reasonable accommodation.

Reasonable documentation means that the employer may require
only the documentation that is needed to establish that a person
has an ADA disability, and that the disability necessitates a
reasonable accommodation. Thus, an employer, in response to a
request for reasonable accommodation, cannot ask for
documentation that is unrelated to determining the existence of
a disability and the necessity for an accommodation. This means
that in most situations an employer cannot request a person's
complete medical records because they are likely to contain
information unrelated to the disability at issue and the need
for accommodation. If an individual has more than one
disability, an employer can request information pertaining only
to the disability that requires a reasonable accommodation.

An employer may require that the documentation about the
disability and the functional limitations come from an
appropriate health care or rehabilitation professional. The
appropriate professional in any particular situation will depend
on the disability and the type of functional limitation it
imposes. Appropriate professionals include, but are not limited
to, doctors (including psychiatrists), psychologists, nurses,
physical therapists, occupational therapists, speech therapists,
vocational rehabilitation specialists, and licensed mental
health professionals.

In requesting documentation, employers should specify what types
of information they are seeking regarding the disability, its
functional limitations, and the need for reasonable
accommodation. The individual can be asked to sign a limited
release allowing the employer to submit a list of specific
questions to the health care or vocational professional.(25)

As an alternative to requesting documentation, an employer may
simply discuss with the person the nature of his/her disability
and functional limitations. It would be useful for the employer
to make clear to the individual why it is requesting
information, i.e., to verify the existence of an ADA disability
and the need for a reasonable accommodation.

     Example A: An employee says to an employer, "I'm
     having trouble reaching tools because of my shoulder
     injury." The employer may ask the employee for
     documentation describing the impairment; the nature,
     severity, and duration of the impairment; the activity
     or activities that the impairment limits; and the
     extent to which the impairment limits the employee's
     ability to perform the activity or activities (i.e.,
     the employer is seeking information as to whether the
     employee has an ADA disability).

     Example B: A marketing employee has a severe learning
     disability. He attends numerous meetings to plan
     marketing strategies. In order to remember what is
     discussed at these meetings he must take detailed
     notes but, due to his disability, he has great
     difficulty writing. The employee tells his supervisor
     about his disability and requests a laptop computer to
     use in the meetings. Since neither the disability nor
     the need for accommodation are obvious, the supervisor
     may ask the employee for reasonable documentation
     about his impairment; the nature, severity, and
     duration of the impairment; the activity or activities
     that the impairment limits; and the extent to which
     the impairment limits the employee's ability to
     perform the activity or activities. The employer also
     may ask why the disability necessitates use of a
     laptop computer (or any other type of reasonable
     accommodation, such as a tape recorder) to help the
     employee retain the information from the meetings.(26)

     Example C: An employee's spouse phones the employee's
     supervisor on Monday morning to inform her that the
     employee had a medical emergency due to multiple
     sclerosis, needed to be hospitalized, and thus
     requires time off. The supervisor can ask the spouse
     to send in documentation from the employee's treating
     physician that confirms that the hospitalization was
     related to the multiple sclerosis and provides
     information on how long an absence may be required
     from work. (27)

If an individual's disability or need for reasonable
accommodation is not obvious, and s/he refuses to provide the
reasonable documentation requested by the employer, then s/he is
not entitled to reasonable accommodation.(28) On the other hand,
failure by the employer to initiate or participate in an
informal dialogue with the individual after receiving a request
for reasonable accommodation could result in liability for
failure to provide a reasonable accommodation.(29)

  * May an employer require an individual to go to a health care
    professional of the employer's (rather than the employee's)
    choice for purposes of documenting need for accommodation
    and disability?

The ADA does not prevent an employer from requiring an
individual to go to an appropriate health professional of the
employer's choice if the individual provides insufficient
information from his/her treating physician (or other health
care professional) to substantiate that s/he has an ADA
disability and needs a reasonable accommodation. However, if an
individual provides insufficient documentation in response to
the employer's initial request, the employer should explain why
the documentation is insufficient and allow the individual an
opportunity to provide the missing information in a timely
manner. Documentation is insufficient if it does not specify the
existence of an ADA disability and explain the need for
reasonable accommodation. (30)

Any medical examination conducted by the employer's health
professional must be job-related and consistent with business
necessity. This means that the examination must be limited to
determining the existence of an ADA disability and the
functional limitations that require reasonable
accommodation.(31) If an employer requires an employee to go to
a health professional of the employer's choice, the employer
must pay all costs associated with the visit(s).

  * Are there situations in which an employer cannot ask for
    documentation in response to a request for reasonable
    accommodation?

Yes. An employer cannot ask for documentation when: (1) both the
disability and the need for reasonable accommodation are
obvious, or (2) the individual has already provided the employer
with sufficient information to substantiate that s/he has an ADA
disability and needs the reasonable accommodation requested.

     Example A: An employee brings a note from her treating
     physician explaining that she has diabetes and that,
     as a result, she must test her blood sugar several
     times a day to ensure that her insulin level is safe
     in order to avoid a hyperglycemic reaction. The note
     explains that a hyperglycemic reaction can include
     extreme thirst, heavy breathing, drowsiness, and
     flushed skin, and eventually would result in
     unconsciousness. Depending on the results of the blood
     test, the employee might have to take insulin. The
     note requests that the employee be allowed three or
     four 10-minute breaks each day to test her blood, and
     if necessary, to take insulin. The doctor's note
     constitutes sufficient documentation that the person
     has an ADA disability because it describes a
     substantially limiting impairment and the reasonable
     accommodation needed as a result. The employer cannot
     ask for additional documentation.

     Example B: One year ago, an employer learned that an
     employee had bipolar disorder after he requested a
     reasonable accommodation. The documentation provided
     at that time from the employee's psychiatrist
     indicated that this was a permanent condition which
     would always involve periods in which the disability
     would remit and then intensify. The psychiatrist's
     letter explained that during periods when the
     condition flared up, the person's manic moods or
     depressive episodes could be severe enough to create
     serious problems for the individual in caring for
     himself or working, and that medication controlled the
     frequency and severity of these episodes.

     Now, one year later, the employee again requests a
     reasonable accommodation related to his bipolar
     disorder. Under these facts, the employer may ask for
     reasonable documentation on the need for the
     accommodation (if the need is not obvious), but it
     cannot ask for documentation that the person has an
     ADA disability. The medical information provided one
     year ago established the existence of a long-term
     impairment that substantially limits a major life
     activity.

     Example C: An employee gives her employer a letter
     from her doctor, stating that the employee has asthma
     and needs the employer to provide her with an air
     filter. This letter contains insufficient information
     as to whether the asthma is an ADA disability because
     it does not provide any information as to its severity
     (i.e., whether it substantially limits a major life
     activity). Furthermore, the letter does not identify
     precisely what problem exists in the workplace that
     requires an air filter or any other reasonable
     accommodation. Therefore, the employer can request
     additional documentation.

  * Is an employer required to provide the reasonable
    accommodation that the individual wants?

The employer may choose among reasonable accommodations as long
as the chosen accommodation is effective.(32) Thus, as part of
the interactive process, the employer may offer alternative
suggestions for reasonable accommodations and discuss their
effectiveness in removing the workplace barrier that is impeding
the individual with a disability.

If there are two possible reasonable accommodations, and one
costs more or is more burdensome than the other, the employer
may choose the less expensive or burdensome accommodation as
long as it is effective (i.e., it would remove a workplace
barrier, thereby providing the individual with an equal
opportunity to apply for a position, to perform the essential
functions of a position, or to gain equal access to a benefit or
privilege of employment). Similarly, when there are two or more
effective accommodations, the employer may choose the one that
is easier to provide. In either situation, the employer does not
have to show that it is an undue hardship to provide the more
expensive or more difficult accommodation. If more than one
accommodation is effective, "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 between effective accommodations."
(33)

     Example A: An employee with a severe learning
     disability has great difficulty reading. His
     supervisor sends him many detailed memoranda which he
     often has trouble understanding. However, he has no
     difficulty understanding oral communication. The
     employee requests that the employer install a computer
     with speech output and that his supervisor send all
     memoranda through electronic mail which the computer
     can then read to him. The supervisor asks whether a
     tape recorded message would accomplish the same
     objective and the employee agrees that it would. Since
     both accommodations are effective, the employer may
     choose to provide the supervisor and employee with a
     tape recorder so that the supervisor can record her
     memoranda and the employee can listen to them.

     Example B: An attorney with a severe vision disability
     requests that her employer provide someone to read
     printed materials that she needs to review daily. The
     attorney explains that a reader enables her to review
     substantial amounts of written materials in an
     efficient manner. Believing that this reasonable
     accommodation would be too costly, the employer
     instead provides the attorney with a device that
     allows her to magnify print so that she can read it
     herself. The attorney can read print using this
     device, but with such great difficulty it
     significantly slows down her ability to review written
     materials. The magnifying device is ineffective as a
     reasonable accommodation because it does not provide
     the attorney with an equal opportunity to attain the
     same level of performance as her colleagues. Without
     an equal opportunity to attain the same level of
     performance, this attorney is denied an equal
     opportunity to compete for promotions. In this
     instance, failure to provide the reader, absent undue
     hardship, would violate the ADA.

  * How quickly must an employer respond to a request for
    reasonable accommodation?

An employer should respond expeditiously to a request for
reasonable accommodation. If the employer and the individual
with a disability need to engage in an interactive process, this
too should proceed as quickly as possible.(34) Similarly, the
employer should act promptly to provide the reasonable
accommodation. Unnecessary delays can result in a violation of
the ADA. (35)

     Example A: An employer provides parking for all
     employees. An employee who uses a wheelchair requests
     from his supervisor an accessible parking space,
     explaining that the spaces are so narrow that there is
     insufficient room for his van to extend the ramp that
     allows him to get in and out. The supervisor does not
     act on the request and does not forward it to someone
     with authority to respond. The employee makes a second
     request to the supervisor. Yet, two months after the
     initial request, nothing has been done. Although the
     supervisor never definitively denies the request, the
     lack of action under these circumstances amounts to a
     denial, and thus violates the ADA.

     Example B: An employee who is blind requests adaptive
     equipment for her computer as a reasonable
     accommodation. The employer must order this equipment
     and is informed that it will take three months to
     receive delivery. No other company sells the adaptive
     equipment the employee needs. The employer notifies
     the employee of the results of its investigation and
     that it has ordered the equipment. Although it will
     take three months to receive the equipment, the
     employer has moved as quickly as it can to obtain it
     and thus there is no ADA violation resulting from the
     delay. The employer and employee should determine what
     can be done so that the employee can perform his/her
     job as effectively as possible while waiting for the
     equipment.

  * May an employer require an individual with a disability to
    accept a reasonable accommodation that s/he does not want?

No. An employer may not require a qualified individual with a
disability to accept an accommodation. If, however, an employee
needs a reasonable accommodation to perform an essential
function or to eliminate a direct threat, and refuses to accept
an effective accommodation, s/he may not be qualified to remain
in the job. (36)

REASONABLE ACCOMMODATION AND JOB APPLICANTS

  * May an employer ask whether a reasonable accommodation is
    needed when an applicant has not asked for one?

An employer may tell applicants what the hiring process involves
(e.g., an interview, timed written test, or job demonstration),
and may ask applicants whether they will need a reasonable
accommodation for this process.

During the hiring process and before a conditional offer is
made, an employer generally may not ask an applicant whether
s/he needs a reasonable accommodation for the job, except when
the employer knows that an applicant has a disability -- either
because it is obvious or the applicant has voluntarily disclosed
the information -- and could reasonably believe that the
applicant will need a reasonable accommodation to perform
specific job functions. If the applicant replies that s/he needs
a reasonable accommodation, the employer may inquire as to what
type.(37)

After a conditional offer of employment is extended, an employer
may inquire whether applicants will need reasonable
accommodations related to anything connected with the job (i.e.,
job performance or access to benefits/privileges of the job) as
long as all entering employees in the same job category are
asked this question. Alternatively, an employer may ask a
specific applicant if s/he needs a reasonable accommodation if
the employer knows that this applicant has a disability --
either because it is obvious or the applicant has voluntarily
disclosed the information -- and could reasonably believe that
the applicant will need a reasonable accommodation. If the
applicant replies that s/he needs a reasonable accommodation,
the employer may inquire as to what type.(38)

  * Does an employer have to provide a reasonable accommodation
    to an applicant with a disability even if it believes that
    it will be unable to provide this individual with a
    reasonable accommodation on the job?

Yes. An employer must provide a reasonable accommodation to a
qualified applicant with a disability that will enable the
individual to have an equal opportunity to participate in the
application process and to be considered for a job (unless it
can show undue hardship). Thus, individuals with disabilities
who meet initial requirements to be considered for a job should
not be excluded from the application process because the
employer speculates, based on a request for reasonable
accommodation for the application process, that it will be
unable to provide the individual with reasonable accommodation
to perform the job. In many instances, employers will be unable
to determine whether an individual needs reasonable
accommodation to perform a job based solely on a request for
accommodation during the application process. And even if an
individual will need reasonable accommodation to perform the
job, it may not be the same type or degree of accommodation that
is needed for the application process. Thus, an employer should
assess the need for accommodations for the application process
separately from those that may be needed to perform the job. (39)

     Example A: An employer is impressed with an
     applicant's resume and contacts the individual to come
     in for an interview. The applicant, who is deaf,
     requests a sign language interpreter for the
     interview. The employer cancels the interview and
     refuses to consider further this applicant because it
     believes it would have to hire a full-time
     interpreter. The employer has violated the ADA. The
     employer should have proceeded with the interview,
     using a sign language interpreter (absent undue
     hardship), and at the interview inquired to what
     extent the individual would need a sign language
     interpreter to perform any essential functions
     requiring communication with other people.

     Example B: An individual who has paraplegia applies
     for a secretarial position. Because the office has two
     steps at the entrance, the employer arranges for the
     applicant to take a typing test, a requirement of the
     application process, at a different location. The
     applicant fails the test. The employer does not have
     to provide any further reasonable accommodations for
     this individual because she is no longer qualified to
     continue with the application process.

REASONABLE ACCOMMODATION RELATED TO THE BENEFITS AND PRIVILEGES
OF EMPLOYMENT(40)

The ADA requires employers to provide reasonable accommodations
so that employees with disabilities can enjoy the "benefits and
privileges of employment" equal to those enjoyed by
similarly-situated employees without disabilities. Benefits and
privileges of employment include, but are not limited to,
employer-sponsored: (1) training, (2) services (e.g., employee
assistance programs (EAP's), credit unions, cafeterias, lounges,
gymnasiums, auditoriums, transportation), and (3) parties or
other social functions (e.g., parties to celebrate retirements
and birthdays, and company outings).(41) If an employee with a
disability needs a reasonable accommodation in order to gain
access to, and have an equal opportunity to participate in,
these benefits and privileges, then the employer must provide
the accommodation unless it can show undue hardship.

  * Does an employer have to provide reasonable accommodation to
    enable an employee with a disability to have equal access to
    information communicated in the workplace to non-disabled
    employees?

Yes. Employers provide information to employees through
different means, including computers, bulletin boards,
mailboxes, posters, and public address systems. Employers must
ensure that employees with disabilities have access to
information that is provided to other similarly-situated
employees without disabilities, regardless of whether they need
it to perform their jobs.

     Example A: An employee who is blind has adaptive
     equipment for his computer that integrates him into
     the network with other employees, thus allowing
     communication via electronic mail and access to the
     computer bulletin board. When the employer installs
     upgraded computer equipment, it must provide new
     adaptive equipment in order for the employee to be
     integrated into the new networks, absent undue
     hardship. Alternative methods of communication (e.g.,
     sending written or telephone messages to the employee
     instead of electronic mail) are likely to be
     ineffective substitutes since electronic mail is used
     by every employee and there is no effective way to
     ensure that each one will always use alternative
     measures to ensure that the blind employee receives
     the same information that is being transmitted via
     computer.

     Example B: An employer authorizes the Human Resources
     Director to use a public address system to remind
     employees about special meetings and to make certain
     announcements. In order to make this information
     accessible to a deaf employee, the Human Resources
     Director arranges to send in advance an electronic
     mail message to the deaf employee conveying the
     information that will be broadcast. The Human
     Resources Director is the only person who uses the
     public address system; therefore, the employer can
     ensure that all public address messages are sent, via
     electronic mail, to the deaf employee. Thus, the
     employer is providing this employee with equal access
     to office communications.

  * Must an employer provide reasonable accommodation so that an
    employee may attend training programs?

Yes. Employers must provide reasonable accommodation (e.g., sign
language interpreters; written materials produced in alternative
formats, such as braille, large print, or on audio-cassette)
that will provide employees with disabilities with an equal
opportunity to participate in employer-sponsored training,
absent undue hardship. This obligation extends to in-house
training, as well as to training provided by an outside entity.
Similarly, the employer has an obligation to provide reasonable
accommodation whether the training occurs on the employer's
premises or elsewhere.

     Example A: XYZ Corp. has signed a contract with Super
     Trainers, Inc., to provide mediation training at its
     facility to all of XYZ's Human Resources staff. One
     staff member is blind and requests that materials be
     provided in braille. Super Trainers refuses to provide
     the materials in braille. XYZ maintains that it is the
     responsibility of Super Trainers and sees no reason
     why it should have to arrange and pay for the braille
     copy.

     Both XYZ (as an employer covered under Title I of the
     ADA) and Super Trainers (as a public accommodation
     covered under Title III of the ADA (42)) have
     obligations to provide materials in alternative
     formats. This fact, however, does not excuse either
     one from their respective obligations. If Super
     Trainers refuses to provide the braille version,
     despite its Title III obligations, XYZ still retains
     its obligation to provide it as a reasonable
     accommodation, absent undue hardship.

     Employers arranging with an outside entity to provide
     training may wish to avoid such problems by specifying
     in the contract who has the responsibility to provide
     appropriate reasonable accommodations. Similarly,
     employers should ensure that any offsite training will
     be held in an accessible facility if they have an
     employee who, because of a disability, requires such
     an accommodation.

     Example B: XYZ Corp. arranges for one of its employees
     to provide CPR training. This three-hour program is
     optional. A deaf employee wishes to take the training
     and requests a sign language interpreter. XYZ must
     provide the interpreter because the CPR training is a
     benefit that XYZ offers all employees, even though it
     is optional.

TYPES OF REASONABLE ACCOMMODATIONS RELATED TO JOB PERFORMANCE
(43)

Below are discussed certain types of reasonable accommodations
related to job performance.

Job Restructuring

Job restructuring includes modifications such as:

  * reallocating or redistributing marginal job functions that
    an employee is unable to perform because of a disability;
    and

  * altering when and/or how a function, essential or marginal,
    is performed.(44)

An employer never has to reallocate essential functions as a
reasonable accommodation, but can do so if it wishes.

  * If, as a reasonable accommodation, an employer restructures
    an employee's job to eliminate some marginal functions, may
    the employer require the employee to take on other marginal
    functions that s/he can perform?

Yes. An employer may switch the marginal functions of two (or
more) employees in order to restructure a job as a reasonable
accommodation.

     Example: A cleaning crew works in an office building.
     One member of the crew wears a prosthetic leg which
     enables him to walk very well, but climbing steps is
     painful and difficult. Although he can perform his
     essential functions without problems, he cannot
     perform the marginal function of sweeping the steps
     located throughout the building. The marginal
     functions of a second crew member include cleaning the
     small kitchen in the employee's lounge, which is
     something the first crew member can perform. The
     employer can switch the marginal functions performed
     by these two employees.

Leave

Permitting the use of accrued paid leave, or unpaid leave, is a
form of reasonable accommodation when necessitated by an
employee's disability.(45) An employer does not have to provide
paid leave beyond that which is provided to similarly-situated
employees. Employers should allow an employee with a disability
to exhaust accrued paid leave first and then provide unpaid
leave.(46) For example, if employees get 10 days of paid leave,
and an employee with a disability needs 15 days of leave, the
employer should allow the individual to use 10 days of paid
leave and 5 days of unpaid leave.

An employee with a disability may need leave for a number of
reasons related to the disability, including, but not limited to:

  * obtaining medical treatment (e.g., surgery, psychotherapy,
    substance abuse treatment, or dialysis); rehabilitation
    services; or physical or occupational therapy;

  * recuperating from an illness or an episodic manifestation of
    the disability;

  * obtaining repairs on a wheelchair, accessible van, or
    prosthetic device;

  * avoiding temporary adverse conditions in the work
    environment (for example, an air-conditioning breakdown
    causing unusually warm temperatures that could seriously
    harm an employee with multiple sclerosis);

  * training a service animal (e.g., a guide dog); or

  * receiving training in the use of braille or to learn sign
    language.

  * May an employer apply a "no-fault" leave policy, under which
    employees are automatically terminated after they have been
    on leave for a certain period of time, to an employee with a
    disability who needs leave beyond the set period?

No. If an employee with a disability needs additional unpaid
leave as a reasonable accommodation, the employer must modify
its "no-fault" leave policy to provide the employee with the
additional leave, unless it can show that: (1) there is another
effective accommodation that would enable the person to perform
the essential functions of his/her position, or (2) granting
additional leave would cause an undue hardship. Modifying
workplace policies, including leave policies, is a form of
reasonable accommodation.(47)

  * Does an employer have to hold open an employee's job as a
    reasonable accommodation?

Yes. An employee with a disability who is granted leave as a
reasonable accommodation is entitled to return to his/her same
position unless the employer demonstrates that holding open the
position would impose an undue hardship.(48)

If an employer cannot hold a position open during the entire
leave period without incurring undue hardship, the employer must
consider whether it has a vacant, equivalent position for which
the employee is qualified and to which the employee can be
reassigned to continue his/her leave for a specific period of
time and then, at the conclusion of the leave, can be returned
to this new position. (49)

     Example: An employee needs eight months of leave for
     treatment and recuperation related to a disability.
     The employer grants the request, but after four months
     the employer determines that it can no longer hold
     open the position for the remaining four months
     without incurring undue hardship. The employer must
     consider whether it has a vacant, equivalent position
     to which the employee can be reassigned for the
     remaining four months of leave, at the end of which
     time the employee would return to work in that new
     position. If an equivalent position is not available,
     the employer must look for a vacant position at a
     lower level. Continued leave is not required as a
     reasonable accommodation if a vacant position at a
     lower level is also unavailable.

  * Can an employer penalize an employee for work missed during
    leave taken as a reasonable accommodation?

No. To do so would be retaliation for the employee's use of a
reasonable accommodation to which s/he is entitled under the
law. (50) Moreover, such punishment would make the leave an
ineffective accommodation, thus making an employer liable for
failing to provide a reasonable accommodation. (51)

     Example A: A salesperson took five months of leave as
     a reasonable accommodation. The company compares the
     sales records of all salespeople over a one-year
     period, and any employee whose sales fall more than
     25% below the median sales performance of all
     employees is automatically terminated. The employer
     terminates the salesperson because she had fallen
     below the required performance standard. The company
     did not consider that the reason for her lower sales
     performance was her five-month leave of absence; nor
     did it assess her productivity during the period she
     did work (i.e., prorate her productivity).

     Penalizing the salesperson in this manner constitutes
     retaliation and a denial of reasonable accommodation.

     Example B: Company X is having a reduction-in-force.
     The company decides that any employee who has missed
     more than four weeks in the past year will be
     terminated. An employee took five weeks of leave for
     treatment of his disability. The company cannot count
     those five weeks in determining whether to terminate
     this employee. (52)

  * When an employee requests leave as a reasonable
    accommodation, may an employer provide an accommodation that
    requires him/her to remain on the job instead?

Yes, if the employer's reasonable accommodation would be
effective and eliminate the need for leave.(53) An employer need
not provide an employee's preferred accommodation as long as the
employer provides an effective accommodation. (54) Accordingly,
in lieu of providing leave, an employer may provide a reasonable
accommodation that requires an employee to remain on the job
(e.g., reallocation of marginal functions or temporary transfer)
as long as it does not interfere with the employee's ability to
address his/her medical needs. The employer is obligated,
however, to restore the employee's full duties or to return the
employee to his/her original position once s/he no longer needs
the reasonable accommodation.

     Example A: An employee with emphysema requests ten
     weeks of leave for surgery and recuperation related to
     his disability. In discussing this request with the
     employer, the employee states that he could return to
     work after seven weeks if, during his first three
     weeks back, he could work part-time and eliminate two
     marginal functions that require lots of walking. If
     the employer provides these accommodations, then it
     can require the employee to return to work after seven
     weeks.

     Example B: An employee's disability is getting more
     severe and her doctor recommends surgery to counteract
     some of the effects. After receiving the employee's
     request for leave for the surgery, the employer
     proposes that it provide certain equipment which it
     believes will mitigate the effects of the disability
     and delay the need for leave to get surgery. The
     employer's proposed accommodation is not effective
     because it interferes with the employee's ability to
     get medical treatment.

  * How should an employer handle leave for an employee covered
    by both the ADA and the Family and Medical Leave Act (FMLA)?
    (55)

An employer should determine an employee's rights under each
statute separately, and then consider whether the two statutes
overlap regarding the appropriate actions to take.(56)

Under the ADA, an employee who needs leave related to his/her
disability is entitled to such leave if there is no other
effective accommodation and the leave will not cause undue
hardship. An employer must allow the individual to use any
accrued paid leave first, but, if that is insufficient to cover
the entire period, then the employer should grant unpaid leave.
An employer must continue an employee's health insurance
benefits during his/her leave period only if it does so for
other employees in a similar leave status. As for the employee's
position, the ADA requires that the employer hold it open while
the employee is on leave unless it can show that doing so causes
undue hardship. When the employee is ready to return to work,
the employer must allow the individual to return to the same
position (assuming that there was no undue hardship in holding
it open) if the employee is still qualified (i.e., the employee
can perform the essential functions of the position with or
without reasonable accommodation).

If it is an undue hardship under the ADA to hold open an
employee's position during a period of leave, or an employee is
no longer qualified to return to his/her original position, then
the employer must reassign the employee (absent undue hardship)
to a vacant position for which s/he is qualified.

Under the FMLA, an eligible employee is entitled to a maximum of
12 weeks of leave per 12 month period. The FMLA guarantees the
right of the employee to return to the same position or to an
equivalent one.(57) An employer must allow the individual to use
any accrued paid leave first, but if that is insufficient to
cover the entire period, then the employer should grant unpaid
leave. The FMLA requires an employer to continue the employee's
health insurance coverage during the leave period, provided the
employee pays his/her share of the premiums.

     Example A: An employee with an ADA disability needs 13
     weeks of leave for treatment related to the
     disability. The employee is eligible under the FMLA
     for 12 weeks of leave (the maximum available), so this
     period of leave constitutes both FMLA leave and a
     reasonable accommodation. Under the FMLA, the employer
     could deny the employee the thirteenth week of leave.
     But, because the employee is also covered under the
     ADA, the employer cannot deny the request for the
     thirteenth week of leave unless it can show undue
     hardship. The employer may consider the impact on its
     operations caused by the initial 12-week absence,
     along with other undue hardship factors.(58)

     Example B: An employee with an ADA disability has
     taken 10 weeks of FMLA leave and is preparing to
     return to work. The employer wants to put her in an
     equivalent position rather than her original one.
     Although this is permissible under the FMLA, the ADA
     requires that the employer return the employee to her
     original position. Unless the employer can show that
     this would cause an undue hardship, or that the
     employee is no longer qualified for her original
     position (with or without reasonable accommodation),
     the employer must reinstate the employee to her
     original position.

     Example C: An employee with an ADA disability has
     taken 12 weeks of FMLA leave. He notifies his employer
     that he is ready to return to work, but he no longer
     is able to perform the essential functions of his
     position or an equivalent position. Under the FMLA,
     the employer could terminate his employment,(59) but
     under the ADA the employer must consider whether the
     employee could perform the essential functions with
     reasonable accommodation (e.g., additional leave,
     part-time schedule, job restructuring, or use of
     specialized equipment). If not, the ADA requires the
     employer to reassign the employee if there is a vacant
     position available for which he is qualified, with or
     without reasonable accommodation, and there is no
     undue hardship.

Modified or Part-Time Schedule

  * Must an employer allow an employee with a disability to work
    a modified or part-time schedule as a reasonable
    accommodation, absent undue hardship?

Yes.(60) A modified schedule may involve adjusting arrival or
departure times, providing periodic breaks, altering when
certain functions are performed, allowing an employee to use
accrued paid leave, or providing additional unpaid leave. An
employer must provide a modified or part-time schedule when
required as a reasonable accommodation, absent undue hardship,
even if it does not provide such schedules for other employees.

     Example A: An employee with HIV infection must take
     medication on a strict schedule. The medication causes
     extreme nausea about one hour after ingestion, and
     generally lasts about 45 minutes. The employee asks
     that he be allowed to take a daily 45-minute break
     when the nausea occurs. The employer must grant this
     request absent undue hardship.

For certain positions, the time during which an essential
function is performed may be critical. This could affect whether
an employer can grant a request to modify an employee's
schedule. (61) Employers should carefully assess whether
modifying the hours could significantly disrupt their operations
-- that is, cause undue hardship -- or whether the essential
functions may be performed at different times with little or no
impact on the operations or the ability of other employees to
perform their jobs.

If modifying an employee's schedule poses an undue hardship, an
employer must consider reassignment to a vacant position that
would enable the employee to work during the hours requested.
(62)

     Example B: A day care worker requests that she be
     allowed to change her hours from 7:00 a.m. - 3:00 p.m.
     to 10:00 a.m. - 6:00 p.m. because of her disability.
     The day care center is open from 7:00 a.m. - 7:00 p.m.
     and it will still have sufficient coverage at the
     beginning of the morning if it grants the change in
     hours. In this situation, the employer must provide
     the reasonable accommodation.

     Example C: An employee works for a morning newspaper,
     operating the printing presses which run between 10
     p.m. and 3 a.m. Due to her disability, she needs to
     work in the daytime. The essential function of her
     position, operating the printing presses, requires
     that she work at night because the newspaper cannot be
     printed during the daytime hours. Since the employer
     cannot modify her hours, it must consider whether it
     can reassign her to a different position.

  * How should an employer handle requests for modified or
    part-time schedules for an employee covered by both the ADA
    and the Family and Medical Leave Act (FMLA)? (63)

An employer should determine an employee's rights under each
statute separately, and then consider whether the two statutes
overlap regarding the appropriate actions to take.

Under the ADA, an employee who needs a modified or part-time
schedule because of his/her disability is entitled to such a
schedule if there is no other effective accommodation and it
will not cause undue hardship. If there is undue hardship, the
employer must reassign the employee if there is a vacant
position for which s/he is qualified and which would allow the
employer to grant the modified or part-time schedule (absent
undue hardship). (64) An employee receiving a part-time schedule
as a reasonable accommodation is entitled only to the benefits,
including health insurance, that other part-time employees
receive. Thus, if non-disabled part-time workers are not
provided with health insurance, then the employer does not have
to provide such coverage to an employee with a disability who is
given a part-time schedule as a reasonable accommodation.

Under the FMLA, an eligible employee is entitled to take leave
intermittently or on a part-time basis, when medically
necessary, until s/he has used up the equivalent of 12 workweeks
in a 12-month period. When such leave is foreseeable based on
planned medical treatment, an employer may require the employee
to temporarily transfer (for the duration of the leave) to an
available alternative position, with equivalent pay and
benefits, for which the employee is qualified and which better
suits his/her reduced hours.(65) An employer always must
maintain the employee's existing level of coverage under a group
health plan during the period of FMLA leave, provided the
employee pays his/her share of the premium. (66)

     Example: An employee with an ADA disability requests
     that she be excused from work one day a week for the
     next six months because of her disability. If this
     employee is eligible for a modified schedule under the
     FMLA, the employer must provide the requested leave
     under that statute if it is medically necessary, even
     if the leave would be an undue hardship under the ADA.

Modified Workplace Policies

  * Is it a reasonable accommodation to modify a workplace
    policy?

Yes. It is a reasonable accommodation to modify a workplace
policy when necessitated by an individual's disability-related
limitations, (67) absent undue hardship. But, reasonable
accommodation only requires that the employer modify the policy
for an employee who requires such action because of a
disability; therefore, the employer may continue to apply the
policy to all other employees.

     Example: An employer has a policy prohibiting
     employees from eating or drinking at their
     workstations. An employee with insulin-dependent
     diabetes explains to her employer that she may
     occasionally take too much insulin and, in order to
     avoid going into insulin shock, she must immediately
     eat a candy bar or drink fruit juice. The employee
     requests permission to keep such food at her
     workstation and to eat or drink when her insulin level
     necessitates. The employer must modify its policy to
     grant this request, absent undue hardship. Similarly,
     an employer might have to modify a policy to allow an
     employee with a disability to bring in a small
     refrigerator, or to use the employer's refrigerator,
     to store medication that must be taken during working
     hours.

Granting an employee time off from work or an adjusted work
schedule as a reasonable accommodation may involve modifying
leave or attendance procedures or policies. For example, it
would be a reasonable accommodation to modify a policy requiring
employees to schedule vacation time in advance if an otherwise
qualified individual with a disability needed to use accrued
vacation time on an unscheduled basis because of
disability-related medical problems, barring undue hardship.
(68) Furthermore, an employer may be required to provide
additional leave to an employee with a disability as a
reasonable accommodation in spite of a "no-fault" leave policy,
unless the provision of such leave would impose an undue
hardship. (69)

In some instances, an employer's refusal to modify a workplace
policy, such as a leave or attendance policy, could constitute
disparate treatment as well as a failure to provide a reasonable
accommodation. For example, an employer may have a policy
requiring employees to notify supervisors before 9:00 a.m. if
they are unable to report to work. If an employer would excuse
an employee from complying with this policy because of emergency
hospitalization due to a car accident, then the employer must do
the same thing when the emergency hospitalization is due to a
disability.(70)

Reassignment(71)

The ADA specifically lists "reassignment to a vacant position"
as a form of reasonable accommodation.(72) This type of
reasonable accommodation must be provided to an employee who,
because of a disability, can no longer perform the essential
functions of his/her current position, with or without
reasonable accommodation, unless the employer can show that it
would be an undue hardship. (73)

An employee must be "qualified" for the new position. An
employee is "qualified" for a position if s/he: (1) satisfies
the requisite skill, experience, education, and other
job-related requirements of the position, and (2) can perform
the essential functions of the new position, with or without
reasonable accommodation. (74) The employee does not need to be
the best qualified individual for the position in order to
obtain it as a reassignment.

There is no obligation for the employer to assist the individual
to become qualified. Thus, the employer does not have to provide
training so that the employee acquires necessary skills to take
a job. (75) The employer, however, would have to provide an
employee with a disability who is being reassigned with any
training that is normally provided to anyone hired for or
transferred to the position.

     Example A: An employer is considering reassigning an
     employee with a disability to a position which
     requires the ability to speak Spanish in order to
     perform an essential function. The employee never
     learned Spanish and wants the employer to send him to
     a course to learn Spanish. The employer is not
     required to provide this training as part of the
     obligation to make a reassignment. Therefore, the
     employee is not qualified for this position.

     Example B: An employer is considering reassigning an
     employee with a disability to a position in which she
     will contract for goods and services. The employee is
     qualified for the position. The employer has its own
     specialized rules regarding contracting that
     necessitate training all individuals hired for these
     positions. In this situation, the employer must
     provide the employee with this specialized training.

Before considering reassignment as a reasonable accommodation,
employers should first consider those accommodations that would
enable an employee to remain in his/her current position.
Reassignment is the reasonable accommodation of last resort and
is required only after it has been determined that: (1) there
are no effective accommodations that will enable the employee to
perform the essential functions of his/her current position, or
(2) all other reasonable accommodations would impose an undue
hardship.(76) However, if both the employer and the employee
voluntarily agree that transfer is preferable to remaining in
the current position with some form of reasonable accommodation,
then the employer may transfer the employee.

"Vacant" means that the position is available when the employee
asks for reasonable accommodation, or that the employer knows
that it will become available within a reasonable amount of
time. A "reasonable amount of time" should be determined on a
case-by-case basis considering relevant facts, such as whether
the employer, based on experience, can anticipate that an
appropriate position will become vacant within a short period of
time.(77) A position is considered vacant even if an employer
has posted a notice or announcement seeking applications for
that position. The employer does not have to bump an employee
from a job in order to create a vacancy; nor does it have to
create a new position.(78)

     Example C: An employer is seeking a reassignment for
     an employee with a disability. There are no vacant
     positions today, but the employer has just learned
     that another employee resigned and that that position
     will become vacant in four weeks. The impending
     vacancy is equivalent to the position currently held
     by the employee with a disability. If the employee is
     qualified for that position, the employer must offer
     it to him.

     Example D: An employer is seeking a reassignment for
     an employee with a disability. There are no vacant
     positions today, but the employer has just learned
     that an employee in an equivalent position plans to
     retire in six months. Although the employer knows that
     the employee with a disability is qualified for this
     position, the employer does not have to offer this
     position to her because six months is beyond a
     "reasonable amount of time." (If, six months from now,
     the employer decides to advertise the position, it
     must allow the individual to apply for that position
     and give the application the consideration it
     deserves.)

The employer must reassign the individual to a vacant position
that is equivalent in terms of pay, status, or other relevant
factors (e.g., benefits, geographical location) if the employee
is qualified for the position. If there is no vacant equivalent
position, the employer must reassign the employee to a vacant
lower level position for which the individual is qualified.
Assuming there is more than one vacancy for which the employee
is qualified, the employer must place the individual in the
position that comes closest to the employee's current position
in terms of pay, status, etc.(79) If it is unclear which
position comes closest, the employer should consult with the
employee about his/her preference before determining the
position to which the employee will be reassigned. Reassignment
does not include giving an employee a promotion. Thus, an
employee must compete for any vacant position that would
constitute a promotion.

  * Is a probationary employee entitled to reassignment?

Employers cannot deny a reassignment to an employee solely
because s/he is designated as "probationary."(80) An employee
with a disability is eligible for reassignment to a new
position, regardless of whether s/he is considered
"probationary," as long as the employee adequately performed the
essential functions of the position, with or without reasonable
accommodation, before the need for a reassignment arose.

The longer the period of time in which an employee has
adequately performed the essential functions, with or without
reasonable accommodation, the more likely it is that
reassignment is appropriate if the employee becomes unable to
continue performing the essential functions of the current
position due to a disability. If, however, the probationary
employee has never adequately performed the essential functions,
with or without reasonable accommodation, then s/he is not
entitled to reassignment because s/he was never "qualified" for
the original position. In this situation, the employee is
similar to an applicant who applies for a job for which s/he is
not qualified, and then requests reassignment. Applicants are
not entitled to reassignment.

     Example A: An employer designates all new employees as
     "probationary" for one year. An employee has been
     working successfully for nine months when she becomes
     disabled in a car accident. The employee, due to her
     disability, is unable to continue performing the
     essential functions of her current position, with or
     without reasonable accommodation, and seeks a
     reassignment. She is entitled to a reassignment if
     there is a vacant position for which she is qualified
     and it would not pose an undue hardship.

     Example B: A probationary employee has been working
     two weeks, but has been unable to perform the
     essential functions of the job because of his
     disability. There are no reasonable accommodations
     that would permit the individual to perform the
     essential functions of the position, so the individual
     requests a reassignment. The employer does not have to
     provide a reassignment (even if there is a vacant
     position) because, as it turns out, the individual was
     never qualified -- i.e., the individual was never able
     to perform the essential functions of the position,
     with or without reasonable accommodation, for which he
     was hired.

  * Must an employer offer reassignment as a reasonable
    accommodation if it does not allow any of its employees to
    transfer from one position to another?

Yes. The ADA requires employers to provide reasonable
accommodations to individuals with disabilities, including
reassignment, even though they are not available to others.
Therefore, an employer who does not normally transfer employees
would still have to reassign an employee with a disability,
unless it could show that the reassignment caused an undue
hardship. And, if an employer has a policy prohibiting
transfers, it would have to modify that policy in order to
reassign an employee with a disability, unless it could show
undue hardship. (81)

  * Is an employer's obligation to offer reassignment to a
    vacant position limited to those vacancies within an
    employee's office, branch, agency, department, facility,
    personnel system (if the employer has more than a single
    personnel system), or geographical area?

No. This is true even if the employer has a policy prohibiting
transfers from one office, branch, agency, department, facility,
personnel system, or geographical area to another. The ADA
contains no language limiting the obligation to reassign only to
positions within an office, branch, agency, etc.(82) Rather, the
extent to which an employer must search for a vacant position
will be an issue of undue hardship.(83) If an employee is being
reassigned to a different geographical area, the employee must
pay for any relocation expenses unless the employer routinely
pays such expenses when granting voluntary transfers to other
employees.

  * Does an employer have to notify an employee with a
    disability about vacant positions, or is it the employee's
    responsibility to learn what jobs are vacant?

The employer is in the best position to know which jobs are
vacant or will become vacant within a reasonable period of time.
(84) In order to narrow the search for potential vacancies, the
employer, as part of the interactive process, should ask the
employee about his/her qualifications and interests. Based on
this information, the employer is obligated to inform an
employee about vacant positions for which s/he may be eligible
as a reassignment. However, an employee should assist the
employer in identifying appropriate vacancies to the extent that
the employee has access to information about them. If the
employer does not know whether the employee is qualified for a
specific position, the employer can discuss with the employee
his/her qualifications.(85)

An employer should proceed as expeditiously as possible in
determining whether there are appropriate vacancies. The length
of this process will vary depending on how quickly an employer
can search for and identify whether an appropriate vacant
position exists. For a very small employer, this process may
take one day; for other employers this process may take several
weeks.(86) When an employer has completed its search, identified
whether there are any vacancies (including any positions that
will become vacant in a reasonable amount of time), notified the
employee of the results, and either offered an appropriate
vacancy to the employee or informed him/her that no appropriate
vacancies are available, the employer will have fulfilled its
obligation.

  * Does reassignment mean that the employee is permitted to
    compete for a vacant position?

No. Reassignment means that the employee gets the vacant
position if s/he is qualified for it. Otherwise, reassignment
would be of little value and would not be implemented as
Congress intended.(87)

  * If an employee is reassigned to a lower level position, must
    an employer maintain his/her salary from the higher level
    position?

No, unless the employer transfers employees without disabilities
to lower level positions and maintains their original salaries.
(88)

OTHER REASONABLE ACCOMMODATION ISSUES (89)

  * If an employer has provided one reasonable accommodation,
    does it have to provide additional reasonable accommodations
    requested by an individual with a disability?

The duty to provide reasonable accommodation is an ongoing one.
(90) Certain individuals require only one reasonable
accommodation, while others may need more than one. Still others
may need one reasonable accommodation for a period of time, and
then at a later date, require another type of reasonable
accommodation. If an individual requests multiple reasonable
accommodations, s/he is entitled only to those accommodations
that are necessitated by a disability and that will provide an
equal employment opportunity.

An employer must consider each request for reasonable
accommodation and determine: (1) whether the accommodation is
needed, (2) if needed, whether the accommodation would be
effective, and (3) if effective, whether providing the
reasonable accommodation would impose an undue hardship. If a
reasonable accommodation turns out to be ineffective and the
employee with a disability remains unable to perform an
essential function, the employer must consider whether there
would be an alternative reasonable accommodation that would not
pose an undue hardship. If there is no alternative
accommodation, then the employer must attempt to reassign the
employee to a vacant position for which s/he is qualified,
unless to do so would cause an undue hardship.

  * Does an employer have to change a person's supervisor as a
    form of reasonable accommodation?

No. An employer does not have to provide an employee with a new
supervisor as a reasonable accommodation. Nothing in the ADA,
however, prohibits an employer from doing so. Furthermore,
although an employer is not required to change supervisors, the
ADA may require that supervisory methods be altered as a form of
reasonable accommodation. (91) Also, an employee with a
disability is protected from disability-based discrimination by
a supervisor, including disability-based harassment.

     Example: A supervisor frequently schedules team
     meetings on a day's notice - often notifying staff in
     the afternoon that a meeting will be held on the
     following morning. An employee with a disability has
     missed several meetings because they have conflicted
     with previously-scheduled physical therapy sessions.
     The employee asks that the supervisor give her two to
     three days' notice of team meetings so that, if
     necessary, she can reschedule the physical therapy
     sessions. Assuming no undue hardship would result, the
     supervisor must make this reasonable accommodation.

  * Does an employer have to allow an employee with a disability
    to work at home as a reasonable accommodation?

An employer must modify its policy concerning where work is
performed if such a change is needed as a reasonable
accommodation, but only if this accommodation would be effective
and would not cause an undue hardship.(92) Whether this
accommodation is effective will depend on whether the essential
functions of the position can be performed at home. There are
certain jobs in which the essential functions can only be
performed at the work site -- e.g., food server, cashier in a
store. For such jobs, allowing an employee to work at home is
not effective because it does not enable an employee to perform
his/her essential functions. Certain considerations may be
critical in determining whether a job can be effectively
performed at home, including (but not limited to) the employer's
ability to adequately supervise the employee and the employee's
need to work with certain equipment or tools that cannot be
replicated at home. In contrast, employees may be able to
perform the essential functions of certain types of jobs at home
(e.g., telemarketer, proofreader). (93) For these types of jobs,
an employer may deny a request to work at home if it can show
that another accommodation would be effective or if working at
home will cause undue hardship.

  * Must an employer withhold discipline or termination of an
    employee who, because of a disability, violated a conduct
    rule that is job-related for the position in question and
    consistent with business necessity?

No. An employer never has to excuse a violation of a uniformly
applied conduct rule that is job-related and consistent with
business necessity. This means, for example, that an employer
never has to tolerate or excuse violence, threats of violence,
stealing, or destruction of property. An employer may discipline
an employee with a disability for engaging in such misconduct if
it would impose the same discipline on an employee without a
disability.

  * Must an employer provide a reasonable accommodation for an
    employee with a disability who violated a conduct rule that
    is job-related for the position in question and consistent
    with business necessity?

An employer must make reasonable accommodation to enable an
otherwise qualified employee with a disability to meet such a
conduct standard in the future, barring undue hardship, except
where the punishment for the violation is termination. (94)
Since reasonable accommodation is always prospective, an
employer is not required to excuse past misconduct even if it is
the result of the individual's disability. (95) Possible
reasonable accommodations could include adjustments to starting
times, specified breaks, and leave if these accommodations will
enable an employee to comply with conduct rules.(96)

     Example: An employee with major depression is often
     late for work because of medication side-effects that
     make him extremely groggy in the morning. His
     scheduled hours are 9:00 a.m. to 5:30 p.m., but he
     arrives at 9:00, 9:30, 10:00, or even 10:30 on any
     given day. His job responsibilities involve telephone
     contact with the company's traveling sales
     representatives, who depend on him to answer urgent
     marketing questions and expedite special orders. The
     employer disciplines him for tardiness, stating that
     continued failure to arrive promptly during the next
     month will result in termination of his employment.
     The individual then explains that he was late because
     of a disability and needs to work on a later schedule.
     In this situation, the employer may discipline the
     employee because he violated a conduct standard
     addressing tardiness that is job-related for the
     position in question and consistent with business
     necessity. The employer, however, must consider
     reasonable accommodation, barring undue hardship, to
     enable this individual to meet this standard in the
     future. For example, if this individual can serve the
     company's sales representatives by regularly working a
     schedule of 10:00 a.m. to 6:30 p.m., a reasonable
     accommodation would be to modify his schedule so that
     he is not required to report for work until 10:00 a.m.

  * Is it a reasonable accommodation to make sure that an
    employee takes medication as prescribed?

No. Medication monitoring is not a reasonable accommodation.
Employers have no obligation to monitor medication because doing
so does not remove a workplace barrier. Similarly, an employer
has no responsibility to monitor an employee's medical treatment
or ensure that s/he is receiving appropriate treatment because
such treatment does not involve modifying workplace barriers.
(97)

It may be a form of reasonable accommodation, however, to give
an employee a break in order that s/he may take medication, or
to grant leave so that an employee may obtain treatment.

  * Is an employer relieved of its obligation to provide
    reasonable accommodation for an employee with a disability
    who fails to take medication, to obtain medical treatment,
    or to use an assistive device (such as a hearing aid)?

No. The ADA requires an employer to provide reasonable
accommodation to remove workplace barriers, regardless of what
effect medication, other medical treatment, or assistive devices
may have on an employee's ability to perform the job.(98)

However, if an employee with a disability, with or without
reasonable accommodation, cannot perform the essential functions
of the position or poses a direct threat in the absence of
medication, treatment, or an assistive device, then s/he is
unqualified.

  * Must an employer provide a reasonable accommodation that is
    needed because of the side effects of medication or
    treatment related to the disability, or because of symptoms
    or other medical conditions resulting from the underlying
    disability?

Yes. The side effects caused by the medication that an employee
must take because of the disability are limitations resulting
from the disability. Reasonable accommodation extends to all
limitations resulting from a disability.

     Example A: An employee with cancer undergoes
     chemotherapy twice a week, which causes her to be
     quite ill afterwards. The employee requests a modified
     schedule -- leave for the two days a week of
     chemotherapy. The treatment will last six weeks.
     Unless it can show undue hardship, the employer must
     grant this request.

Similarly, any symptoms or related medical conditions resulting
from the disability that cause limitations may also require
reasonable accommodation.(99)

     Example B: An employee, as a result of
     insulin-dependent diabetes, has developed background
     retinopathy (a vision impairment). The employee, who
     already has provided documentation showing his
     diabetes is a disability, requests a device to enlarge
     the text on his computer screen. The employer can
     request documentation that the retinopathy is related
     to the diabetes but the employee does not have to show
     that the retinopathy is an independent disability
     under the ADA. Since the retinopathy is a consequence
     of the diabetes (an ADA disability), the request must
     be granted unless undue hardship can be shown.

  * Must an employer ask whether a reasonable accommodation is
    needed when an employee has not asked for one?

Generally, no. As a general rule, the individual with a
disability -- who has the most knowledge about the need for
reasonable accommodation -- must inform the employer that an
accommodation is needed. (100)

However, an employer should initiate the reasonable
accommodation interactive process(101) without being asked if
the employer: (1) knows that the employee has a disability, (2)
knows, or has reason to know, that the employee is experiencing
workplace problems because of the disability, and (3) knows, or
has reason to know, that the disability prevents the employee
from requesting a reasonable accommodation. If the individual
with a disability states that s/he does not need a reasonable
accommodation, the employer will have fulfilled its obligation.

     Example: An employee with mental retardation delivers
     messages at a law firm. He frequently mixes up
     messages for "R. Miller" and "T. Miller." The employer
     knows about the disability, suspects that the
     performance problem is a result of the disability, and
     knows that this employee is unable to ask for a
     reasonable accommodation because of his mental
     retardation. The employer asks the employee about
     mixing up the two names and asks if it would be
     helpful to spell the first name of each person. When
     the employee says that would be better, the employer,
     as a reasonable accommodation, instructs the
     receptionist to write the full first name when
     messages are left for one of the Messrs. Miller.

  * May an employer ask whether a reasonable accommodation is
    needed when an employee with a disability has not asked for
    one?

An employer may ask an employee with a known disability whether
s/he needs a reasonable accommodation when it reasonably
believes that the employee may need an accommodation. For
example, an employer could ask a deaf employee who is being sent
on a business trip if s/he needs reasonable accommodation. Or,
if an employer is scheduling a luncheon at a restaurant and is
uncertain about what questions it should ask to ensure that the
restaurant is accessible for an employee who uses a wheelchair,
the employer may first ask the employee. An employer also may
ask an employee with a disability who is having performance or
conduct problems if s/he needs reasonable accommodation. (102)

  * May an employer tell other employees that an individual is
    receiving a reasonable accommodation when employees ask
    questions about a coworker with a disability?

No. An employer may not disclose that an employee is receiving a
reasonable accommodation because this usually amounts to a
disclosure that the individual has a disability. The ADA
specifically prohibits the disclosure of medical information
except in certain limited situations, which do not include
disclosure to coworkers. (103)

An employer may certainly respond to a question from an employee
about why a coworker is receiving what is perceived as
"different" or "special" treatment by emphasizing its policy of
assisting any employee who encounters difficulties in the
workplace. The employer also may find it helpful to point out
that many of the workplace issues encountered by employees are
personal, and that, in these circumstances, it is the employer's
policy to respect employee privacy. An employer may be able to
make this point effectively by reassuring the employee asking
the question that his/her privacy would similarly be respected
if s/he found it necessary to ask the employer for some kind of
workplace change for personal reasons.

Since responding to specific coworker questions may be
difficult, employers might find it helpful before such questions
are raised to provide all employees with information about
various laws that require employers to meet certain employee
needs (e.g., the ADA and the Family and Medical Leave Act),
while also requiring them to protect the privacy of employees.
In providing general ADA information to employees, an employer
may wish to highlight the obligation to provide reasonable
accommodation, including the interactive process and different
types of reasonable accommodations, and the statute's
confidentiality protections. Such information could be delivered
in orientation materials, employee handbooks, notices
accompanying paystubs, and posted flyers. Employers may wish to
explore these and other alternatives with unions because they
too are bound by the ADA's confidentiality provisions. Union
meetings and bulletin boards may be further avenues for such
educational efforts.

As long as there is no coercion by an employer, an employee with
a disability may voluntarily choose to disclose to coworkers
his/her disability and/or the fact that s/he is receiving a
reasonable accommodation.

UNDUE HARDSHIP ISSUES (104)

An employer does not have to provide a reasonable accommodation
that would cause an "undue hardship" to the employer.
Generalized conclusions will not suffice to support a claim of
undue hardship. Instead, 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. (105) A determination of undue hardship
should be based on several factors, including:

  * the nature and cost of the accommodation needed;

  * the overall financial resources of the facility making the
    reasonable accommodation; the number of persons employed at
    this facility; the effect on expenses and resources of the
    facility;

  * the overall financial resources, size, number of employees,
    and type and location of facilities of the employer (if the
    facility involved in the reasonable accommodation is part of
    a larger entity);

  * the type of operation of the employer, including the
    structure and functions of the workforce, the geographic
    separateness, and the administrative or fiscal relationship
    of the facility involved in making the accommodation to the
    employer;

  * the impact of the accommodation on the operation of the
    facility. (106)

The ADA's legislative history indicates that Congress wanted
employers to consider all possible sources of outside funding
when assessing whether a particular accommodation would be too
costly. (107) Undue hardship is determined based on the net cost
to the employer. Thus, an employer should determine whether
funding is available from an outside source, such as a state
rehabilitation agency, to pay for all or part of the
accommodation. In addition, the employer should determine
whether it is eligible for certain tax credits or deductions to
offset the cost of the accommodation.(108) Also, to the extent
that a portion of the cost of an accommodation causes undue
hardship, the employer should ask the individual with a
disability if s/he will pay the difference.

If an employer determines that one particular reasonable
accommodation will cause undue hardship, but a second type of
reasonable accommodation will be effective and will not cause an
undue hardship, then the employer must provide the second
accommodation.

An employer cannot claim undue hardship based on employees' (or
customers') fears or prejudices toward the individual's
disability. (109) Nor can undue hardship be based on the fact
that provision of a reasonable accommodation might have a
negative impact on the morale of other employees. Employers,
however, may be able to show undue hardship where provision of a
reasonable accommodation would be unduly disruptive to other
employees's ability to work.

     Example A: An employee with breast cancer is
     undergoing chemotherapy. As a consequence of the
     treatment, the employee is subject to fatigue and
     finds it difficult to keep up with her regular
     workload. So that she may focus her reduced energy on
     performing her essential functions, the employer
     transfers three of her marginal functions to another
     employee for the duration of the chemotherapy
     treatments. The second employee is unhappy at being
     given extra assignments, but the employer determines
     that the employee can absorb the new assignments with
     little effect on his ability to perform his own
     assignments in a timely manner. Since the employer
     cannot show significant disruption to its operation,
     there is no undue hardship. (110)

     Example B: A convenience store clerk with multiple
     sclerosis requests that he be allowed to go from
     working full-time to part-time as a reasonable
     accommodation because of his disability. The store
     assigns two clerks per shift, and if the first clerk's
     hours are reduced, the second clerk's workload will
     increase significantly beyond his ability to handle
     his responsibilities. The store determines that such
     an arrangement will result in inadequate coverage to
     serve customers in a timely manner, keep the shelves
     stocked, and maintain store security. Thus, the
     employer can show undue hardship based on the
     significant disruption to its operations and,
     therefore, can refuse to reduce the employee's hours.
     The employer, however, should explore whether any
     other reasonable accommodation will assist the store
     clerk without causing undue hardship.

  * Must an employer modify the work hours of an employee with a
    disability if doing so would prevent other employees from
    performing their jobs?

No. If the result of modifying one employee's work hours (or
granting leave) is to prevent other employees from doing their
jobs, then the significant disruption to the operations of the
employer constitutes an undue hardship.

     Example A: A crane operator, due to his disability,
     requests an adjustment in his work schedule so that he
     starts work at 8:00 a.m. rather than 7:00 a.m., and
     finishes one hour later in the evening. The crane
     operator works with three other employees who cannot
     perform their jobs without the crane operator. As a
     result, if the employer grants this requested
     accommodation, it would have to require the other
     three workers to adjust their hours, find other work
     for them to do from 7:00 to 8:00, or have the workers
     do nothing. The ADA does not require the employer to
     take any of these actions because they all
     significantly disrupt the operations of the business.
     Thus, the employer can deny the requested
     accommodation, but should discuss with the employee if
     there are other possible accommodations that would not
     result in undue hardship.

     Example B: A computer programmer works with a group of
     people to develop new software. There are certain
     tasks that the entire group must perform together, but
     each person also has individual assignments. It is
     through habit, not necessity, that they have often
     worked together first thing in the morning.

     The programmer, due to her disability, requests an
     adjustment in her work schedule so that she works from
     10:00 a.m. - 7:00 p.m. rather than 9:00 a.m. - 6:00
     p.m. In this situation, the employer could grant the
     adjustment in hours because it would not significantly
     disrupt the operations of the business. The effect of
     the reasonable accommodation would be to alter when
     the group worked together and when they performed
     their individual assignments.

  * Can an employer deny a request for leave when an employee
    cannot provide a fixed date of return?

Providing leave to an employee who is unable to provide a fixed
date of return is a form of reasonable accommodation. However,
if an employer is able to show that the lack of a fixed return
date causes an undue hardship, then it can deny the leave. In
certain circumstances, undue hardship will derive from the
disruption to the operations of the entity that occurs because
the employer can neither plan for the employee's return nor
permanently fill the position. If an employee cannot provide a
fixed date of return, and an employer determines that it can
grant such leave at that time without causing undue hardship,
the employer has the right to require, as part of the
interactive process, that the employee provide periodic updates
on his/her condition and possible date of return. After
receiving these updates, employers may reevaluate whether
continued leave constitutes an undue hardship.

In certain situations, an employee may be able to provide only
an approximate date of return. Treatment and recuperation do not
always permit exact timetables. Thus, an employer cannot claim
undue hardship solely because an employee can provide only an
approximate date of return.(111) In such situations, or in
situations in which a return date must be postponed because of
unforeseen medical developments, employees should stay in
regular communication with their employers to inform them of
their progress and discuss, if necessary, the need for continued
leave beyond what might have been granted originally.(112)

     Example A: An experienced chef at a top restaurant
     requests leave for treatment of her disability but
     cannot provide a fixed date of return. The restaurant
     can show that this request constitutes undue hardship
     because of the difficulty of replacing, even
     temporarily, a chef of this caliber. Moreover, it
     leaves the employer unable to determine how long it
     must hold open the position or to plan for the chef's
     absence. Therefore, the restaurant can deny the
     request for leave as a reasonable accommodation.

     Example B: An employee requests eight weeks of leave
     for surgery for his disability. The employer grants
     the request. During surgery, serious complications
     arise that require a lengthier period of recuperation
     than originally anticipated, as well as additional
     surgery. The employee contacts the employer after
     three weeks of leave to ask for an additional ten to
     fourteen weeks of leave (i.e., a total of 18 to 22
     weeks of leave). The employer must assess whether
     granting additional leave causes an undue hardship.

  * Does a cost-benefit analysis determine whether a reasonable
    accommodation will cause undue hardship?

No. A cost-benefit analysis assesses the cost of a reasonable
accommodation in relation to the perceived benefit to the
employer and the employee. Neither the statute nor the
legislative history supports a cost-benefit analysis to
determine whether a specific accommodation causes an undue
hardship.(113) Whether the cost of a reasonable accommodation
imposes an undue hardship depends on the employer's resources,
not on the individual's salary, position, or status (e.g.,
full-time versus part-time, salary versus hourly wage, permanent
versus temporary).

  * Can an employer claim that a reasonable accommodation
    imposes an undue hardship simply because it violates a
    collective bargaining agreement (CBA)(114)?

No. First, an employer should determine if it could provide a
reasonable accommodation that would remove the workplace barrier
without violating the CBA. If no reasonable accommodation exists
that avoids violating the CBA, then the ADA requires an employer
and a union, as a collective bargaining representative, to
negotiate in good faith a variance to the CBA so that the
employer may provide a reasonable accommodation, except if the
proposed accommodation unduly burdens the expectations of other
workers (i.e., causes undue hardship). Undue hardship must be
assessed on a case-by-case basis to determine the extent to
which the proposed accommodation would affect the expectations
of other employees. Among the relevant factors to assess would
be the duration and severity of any adverse effects caused by
granting a variance and the number of employees whose employment
opportunities would be affected by the variance.(115)

  * Can an employer claim undue hardship solely because a
    reasonable accommodation would require it to make changes to
    property owned by someone else?

No, an employer cannot claim undue hardship solely because a
reasonable accommodation would require it to make changes to
property owned by someone else. In some situations, an employer
will have the right under a lease or other contractual
relationship with the property owner to make the type of changes
that are needed. If this is the case, the employer should make
the changes, assuming no other factors exist that would make the
changes too difficult or costly. If the contractual relationship
between the employer and property owner requires the owner's
consent to the kinds of changes that are required, or prohibits
them from being made, then the employer must make good faith
efforts either to obtain the owner's permission or to negotiate
an exception to the terms of the contract. If the owner refuses
to allow the employer to make the modifications, the employer
may claim undue hardship. Even in this situation, however, the
employer must still provide another reasonable accommodation, if
one exists, that would not cause undue hardship.

     Example A: X Corp., a travel agency, leases space in a
     building owned by Z Co. One of X Corp.'s employees
     becomes disabled and needs to use a wheelchair. The
     employee requests as a reasonable accommodation that
     several room dividers be moved to make his work space
     easily accessible. X Corp.'s lease specifically allows
     it to make these kinds of physical changes, and they
     are otherwise easy and inexpensive to make. The fact
     that X Corp. does not own the property does not create
     an undue hardship and therefore it must make the
     requested accommodation.

     Example B: Same as Example A, except that X Corp.'s
     lease requires it to seek Z Co.'s permission before
     making any physical changes that would involve
     reconfiguring office space. X Corp. requests that Z
     Co. allow it to make the changes, but Z Co. denies the
     request. X Corp. can claim that making the physical
     changes would constitute an undue hardship. However,
     it must provide any other type of reasonable
     accommodation that would not involve making physical
     changes to the facility, such as finding a different
     location within the office that would be accessible to
     the employee.

An employer should remember its obligation to make reasonable
accommodation when it is negotiating contracts with property
owners. (116) Similarly, a property owner should carefully
assess a request from an employer to make physical changes that
are needed as a reasonable accommodation because failure to
permit the modification might constitute "interference" with the
rights of an employee with a disability.(117) In addition, other
ADA provisions may require the property owner to make the
modifications.(118)

INSTRUCTIONS FOR INVESTIGATORS

When assessing whether a Respondent has violated the ADA by
denying a reasonable accommodation to a Charging Party,
investigators should consider the following:

  * Is the Charging Party "otherwise qualified" (i.e., is the
    Charging Party qualified for the job except that, because of
    disability, s/he needs a reasonable accommodation to perform
    the position's essential functions)?

  * Did the Charging Party, or a representative, request a
    reasonable accommodation (i.e., did the Charging Party let
    the employer know that s/he needed an adjustment or change
    at work for a reason related to a medical condition)? [see
    Questions 1-4]

    * Did the Respondent request documentation of the Charging
      Party's disability and/or functional limitations? If yes,
      was the documentation provided? Did the Respondent have a
      legitimate reason for requesting documentation? [see
      Questions 6-8]
    * What specific type of reasonable accommodation, if any,
      did the Charging Party request?
    * Was there a nexus between the reasonable accommodation
      requested and the functional limitations resulting from
      the Charging Party's disability? [see Question 6]
    * Was the need for reasonable accommodation related to the
      use of medication, side effects from treatment, or
      symptoms related to a disability? [see Questions 36-38]

  * For what purpose did the Charging Party request a reasonable
    accommodation:

    * for the application process? [see Questions 12-13]
    * in connection with aspects of job performance? [see
      Questions 16-24, 32-33]
    * in order to enjoy the benefits and privileges of
      employment? [see Questions 14-15]

  * Should the Respondent have initiated the interactive
    process, or provided a reasonable accommodation, even if the
    Charging Party did not ask for an accommodation? [see
    Questions 11, 39]

  * What did the Respondent do in response to the Charging
    Party's request for reasonable accommodation (i.e., did the
    Respondent engage in an interactive process with the
    Charging Party and if so, describe both the Respondent's and
    the Charging Party's actions/statements during this
    process)? [see Questions 5-11]

  * If the Charging Party asked the Respondent for a particular
    reasonable accommodation, and the Respondent provided a
    different accommodation, why did the Respondent provide a
    different reasonable accommodation than the one requested by
    the Charging Party? Why does the Respondent believe that the
    reasonable accommodation it provided was effective in
    eliminating the workplace barrier at issue, thus providing
    the Charging Party with an equal employment opportunity? Why
    does the Charging Party believe that the reasonable
    accommodation provided by the Respondent was ineffective?
    [see Question 9]

  * What type of reasonable accommodation could the Respondent
    have provided that would have been effective in eliminating
    the workplace barrier at issue, thus providing the Charging
    Party with an equal employment opportunity?

  * Does the charge involve allegations concerning reasonable
    accommodation and violations of any conduct rules? [see
    Questions 34-35]

  * If the Charging Party alleges that the Respondent failed to
    provide a reassignment as a reasonable accommodation [see
    generally Questions 25-30 and accompanying text]:

    * did the Respondent and the Charging Party first discuss
      other forms of reasonable accommodation that would enable
      the Charging Party to remain in his/her current position
      before discussing reassignment?
    * did the Respondent have any vacant positions? [see
      Question 27]
    * did the Respondent notify the Charging Party about
      possible vacant positions? [see Question 28]
    * was the Charging Party qualified for a vacant position?
    * if there was more than one vacant position, did the
      Respondent place the Charging Party in the one that was
      most closely equivalent to the Charging Party's original
      position?

  * If the Respondent is claiming undue hardship [see generally
    Questions 42-46 and accompanying text]:

    * what evidence has the Respondent produced showing that
      providing a specific reasonable accommodation would entail
      significant difficulty or expense?
    * if a modified schedule or leave is the reasonable
      accommodation, is undue hardship based on the impact on
      the ability of other employees to do their jobs? [see
      Question 42]
    * if leave is the reasonable accommodation, is undue
      hardship based on the amount of leave requested? [see
      Question 43]
    * is undue hardship based on a conflict between the
      reasonable accommodation and the provisions of a
      collective bargaining agreement? [see Question 45]
    * is undue hardship based on the fact that providing the
      reasonable accommodation requires changes to property
      owned by an entity other than the Respondent? [see
      Question 46]
    * if the Respondent claims that a particular reasonable
      accommodation would result in undue hardship, is there
      another reasonable accommodation that Respondent could
      have provided that would not have resulted in undue
      hardship?

  * Based on the evidence obtained in answers to the questions
    above, is the Charging Party a qualified individual with a
    disability (i.e., can the Charging Party perform the
    essential functions of the position with or without
    reasonable accommodation)?

APPENDIX

Resources For Locating Reasonable Accommodations

U.S. Equal Employment Opportunity Commission
1-800-669-3362 (Voice) 1-800-800-3302 (TT)

The EEOC's Publication Center has many free documents on the
Title I employment provisions of the ADA, including both the
statute, 42 U.S.C. 12101 et seq. (1994), and the regulations, 29
C.F.R. 1630 (1997). In addition, the EEOC has published a great
deal of basic information about reasonable accommodation and
undue hardship. The two main sources of interpretive information
are: (1) the Interpretive Guidance accompanying the Title I
regulations (also known as the "Appendix" to the regulations),
29 C.F.R. pt. 1630 app. 1630.2(o), (p), 1630.9 (1997) , and (2)
A Technical Assistance Manual on the Employment Provisions
(Title I) of the Americans with Disabilities Act III, 8 FEP
Manual (BNA) 405:6981, 6998-7018 (1992). The Manual includes a
200-page Resource Directory, including federal and state
agencies, and disability organizations that can provide
assistance in identifying and locating reasonable accommodations.

The EEOC also has discussed issues involving reasonable
accommodation in the following guidances and documents: (1)
Enforcement Guidance: Preemployment Disability-Related Questions
and Medical Examinations at 5, 6-8, 20, 21-22, 8 FEP Manual
(BNA) 405:7191, 7192-94, 7201 (1995); (2) Enforcement Guidance:
Workers' Compensation and the ADA at 15-20, 8 FEP Manual (BNA)
405:7391, 7398-7401 (1996); (3) Enforcement Guidance: The
Americans with Disabilities Act and Psychiatric Disabilities at
19-28, 8 FEP Manual (BNA) 405:7461, 7470-76 (1997); and (4) Fact
Sheet on the Family and Medical Leave Act, the Americans with
Disabilities Act, and Title VII of the Civil Rights Act of 1964
at 6-9, 8 FEP Manual (BNA) 405:7371, 7374-76 (1996).

Finally, the EEOC has a poster that employers and labor unions
may use to fulfill the ADA's posting requirement.

All of the above-listed documents, with the exception of the ADA
Technical Assistance Manual and Resource Directory and the
poster, are also available through the Internet at
http://www.eeoc.gov.

U.S. Department of Labor (To obtain information on the Family
and Medical Leave Act)

To request written materials: 1-800-959-3652 (Voice)
1-800-326-2577 (TT)

To ask questions: (202) 219-8412 (Voice)

Internal Revenue Service (For information on tax credits and
deductions for providing certain reasonable accommodations)

(202) 622-6060 (Voice)

Job Accommodation Network (JAN)
1-800-232-9675 (Voice/TT)
http://janweb.icdi.wvu.edu/

A service of the President's Committee on Employment of People
with Disabilities. JAN can provide information, free-of-charge,
about many types of reasonable accommodations.

ADA Disability and Business Technical Assistance Centers (DBTACs)
1-800-949-4232 (Voice/TT)

The DBTACs consist of 10 federally funded regional centers that
provide information, training, and technical assistance on the
ADA. Each center works with local business, disability,
governmental, rehabilitation, and other professional networks to
provide current ADA information and assistance, and places
special emphasis on meeting the needs of small businesses. The
DBTACs can make referrals to local sources of expertise in
reasonable accommodations.

Registry of Interpreters for the Deaf
(301) 608-0050 (Voice/TT)

The Registry offers information on locating and using
interpreters and transliteration services.

RESNA Technical Assistance Project
(703) 524-6686 (Voice) (703) 524-6639 (TT)
http://www.resna.org/hometa1.htm

RESNA, the Rehabilitation Engineering and Assistive Technology
Society of North America, can refer individuals to projects in
all 50 states and the six territories offering technical
assistance on technology-related services for individuals with
disabilities. Services may include:

  * information and referral centers to help determine what
    devices may assist a person with a disability (including
    access to large data bases containing information on
    thousands of commercially available assistive technology
    products),
  * centers where individuals can try out devices and equipment,
  * assistance in obtaining funding for and repairing devices,
    and
  * equipment exchange and recycling programs.

INDEX

Note: Page numbering and references removed for on-line version.

Applicants and reasonable accommodation

Attendance and reasonable accommodation

Benefits and privileges of employment and reasonable
accommodation

     Access to information

     Employer-sponsored services

     Employer-sponsored social functions

     Employer-sponsored training

Choosing between two or more reasonable accommodations

Collective bargaining agreements (seniority provisions) and
undue hardship

Conduct rules

Confidentiality and reasonable accommodation

Disparate treatment (versus reasonable accommodation)

Employees (part-time, full-time, probationary)

Essential functions and reasonable accommodation

Family and Medical Leave Act (FMLA);
Relationship with the ADA

Firm choice and reasonable accommodation
(See also "Last chance agreements")

Interactive process between employer and individual with a
disability to determine reasonable accommodation

Landlord/Tenant and reasonable accommodation

Last chance agreements and reasonable accommodation
(See also "Firm choice")

Marginal functions and reasonable accommodation

Medical treatment and reasonable accommodation

     Employer monitoring of medical treatment

     Failure to obtain medical treatment

     Leave

     Side effects of medical treatment and need for
     reasonable accommodation

Medication and reasonable accommodation

     Employer monitoring of medication

     Failure to use medication

     Side effects of medication and need for reasonable
     accommodation

Personal use items and reasonable accommodation

Production standards and reasonable accommodation

Public accommodation and employer; who provides reasonable
accommodation

"Reasonable accommodation" (definition of)

Reasonable accommodation (effectiveness of)

Reasonable accommodation (how many must employer provide)

Reasonable accommodation (types of)

     Access to equipment and computer technology

     Changing tests and training materials

     Job restructuring

     Leave

          Alternatives to leave

          Approximate versus fixed date of return

          Family and Medical Leave Act (FMLA)

          Holding open an employee's position

          "No-fault" leave policies

          Penalizing employees who take leave

     Marginal functions (modifying how they are performed;
     elimination or substitution of)

     Modified or part-time schedule

          Family and Medical Leave Act (FMLA)

     Modifying method of performing job function

     Modifying workplace policies

     Readers

     Reassignment

          Employee must be qualified for vacant
          position

          Equivalent position

          Interactive process between employer and
          employee

          Relationship between reassignment and
          general transfer policies

          Salary for new position

          Vacant position

          When must reassignment be offered

          Who is entitled to reassignment

     Sign language interpreters

     Supervisory methods (changing)

     Working at home

Reasonable accommodation (who is entitled to receive)

Rehabilitation Act of 1973; Relationship with the ADA

Rehabilitation Act Amendment of 1992; Relationship with the ADA

Relationship and association with a person with a disability

Requests for reasonable accommodation

     Choosing between two or more reasonable accommodations

     Documentation on the need for reasonable accommodation

     How to request reasonable accommodation

     Interactive process between employer and individual
     with a disability

     Timing of employer's response to a request for
     reasonable accommodation

     When should individual with disability request
     reasonable accommodation

     Who may request reasonable accommodation

Right of individual with a disability to refuse reasonable
accommodation

Role of health care providers in reasonable accommodation
process

State or local antidiscrimination laws; Relationship with the
ADA

Supervisors and reasonable accommodation

Undue hardship

     Collective bargaining agreements (seniority
     provisions)

     Cost

     Cost-benefit analysis

     Definition of

     Disruption to operations

     Factors to assess

     Landlord/Tenant

     Leave

Work environment and reasonable accommodation


Footnotes

1.  42 U.S.C.  12101-12117, 12201-12213 (1994) (codified as
amended).

The analysis in this guidance applies to federal sector
complaints of non-affirmative action employment discrimination
arising under section 501 of the Rehabilitation Act of 1973. 29
U.S.C. 791(g) (1994). It also applies to complaints of
non-affirmative action employment discrimination arising under
section 503 and employment discrimination under section 504 of
the Rehabilitation Act. 29 U.S.C. 793(d), 794(d) (1994).

The ADA's requirements regarding reasonable accommodation and
undue hardship supercede any state or local disability
antidiscrimination laws to the extent that they offer less
protection than the ADA. See 29 C.F.R. 1630.1(c)(2) (1997).

2.  In addition to employers, the ADA requires employment
agencies, labor organizations, and joint labor-management
committees to provide reasonable accommodations. See 42 U.S.C.
12112(a), (b)(5)(A) (1994).

3.  29 C.F.R. pt. 1630 app. 1630.2(o) (1997).

4.  29 C.F.R. 1630.2(o)(1)(i-iii) (1997) (emphasis added). The
notices that employers and labor unions must post informing
applicants, employees, and members of labor organizations of
their ADA rights must include a description of the reasonable
accommodation requirement. These notices, which must be in an
accessible format, are available from the EEOC. See the
Appendix.

5.  All examples used in this document assume that the applicant
or employee has an ADA "disability."

Individuals with a relationship or association with a person
with a disability are not entitled to receive reasonable
accommodations. See Den Hartog v. Wasatch Academy, 129 F.3d
1076, 1084, 7 AD Cas. (BNA) 764, 772 (10th Cir. 1997).

6. See 29 C.F.R. pt. 1630 app. 1630.9 (1997); see also H.R. Rep.
No. 101-485, pt. 3, at 39 (1990) [hereinafter House Judiciary
Report]; H.R. Rep. No. 101-485, pt. 2, at 65 (1990) [hereinafter
House Education and Labor Report]; S. Rep. No. 101-116, at 34
(1989) [hereinafter Senate Report].

For more information concerning requests for a reasonable
accommodation, see Questions 1-4, infra. For a discussion of the
limited circumstance under which an employer would be required
to ask an individual with a disability whether s/he needed a
reasonable accommodation, see Question 39, infra.

7. 42 U.S.C. 12111(9) (1994); 29 C.F.R. 1630.2(o)(2)(i-ii)
(1997).

8.  "[W]ith or without reasonable accommodation" includes, if
necessary, reassignment to a vacant position. Thus, if an
employee is no longer qualified because of a disability to
continue in his/her present position, an employer must reassign
him/her as a reasonable accommodation. See the section on
"Reassignment," infra pp. 37-38 and n.73.

9.  29 C.F.R. pt. 1630 app. 1630.2(n) (1997).

10.  29 C.F.R. pt. 1630 app. 1630.9 (1997).

11.  See 29 C.F.R. pt. 1630 app. 1630.9 (1997); Senate Report,
supra note 6, at 35 ("reasonableness" of an accommodation is
assessed "in terms of effectiveness and equal opportunity");
House Education and Labor Report, supra note 6, at 66 ("[a]
reasonable accommodation should be effective for the employee");
see also Bryant v. Better Business Bureau of Greater Maryland,
923 F. Supp. 720, 736, 5 AD Cas. (BNA) 625, 634-35 (D. Md.
1996); Dutton v. Johnson County Bd. of Comm'rs, 859 F. Supp.
498, 507, 3 AD Cas. (BNA) 808, 815 (D. Kan. 1994); Davis v. York
Int'l, Inc., 2 AD Cas. (BNA) 1810, 1816 (D. Md. 1993).

Some courts have said that in determining whether an
accommodation is "reasonable," one must look at the costs of the
accommodation in relation to its benefits. See, e.g., Monette v.
Electronic Data Sys. Corp., 90 F.3d 1173, 1184 n.10, 5 AD Cas.
(BNA) 1326, 1335 n.10 (6th Cir. 1996); Vande Zande v. Wisconsin
Dept. of Admin., 44 F.3d 538, 543, 3 AD Cas. (BNA) 1636, 1638-39
(7th Cir. 1995). This "cost/benefit" analysis has no foundation
in the statute, regulations, or legislative history of the ADA.
See 42 U.S.C. 12111(9), (10) (1994); 29 C.F.R. 1630.2(o), (p)
(1997); see also Senate Report, supra, at 31-35; House Education
and Labor Report, supra, at 57-58.

12.  A TTY is a device that permits individuals with hearing and
speech impairments to communicate by telephone.

13.  42 U.S.C. 12111(9) (1994) ("The term 'reasonable
accommodation' may include -- (A) making existing facilities . .
.. readily accessible . . .; and (B) job restructuring; part-time
or modified work schedules, reassignment to a vacant position;
acquisition or modification of equipment or devices, . . .").

14.  See 42 U.S.C. 12112 (b)(5)(A) (1994) (it is a form of
discrimination to fail to provide a reasonable accommodation
"unless such covered entity can demonstrate that the
accommodation would impose an undue hardship . . ."); see also
42 U.S.C. 12111(10) (1994) (defining "undue hardship" based on
factors assessing cost and difficulty).

The legislative history discusses financial, administrative, and
operational limitations on providing reasonable accommodations
only in the context of defining "undue hardship." Compare Senate
Report, supra note 6, at 31-34 with 35-36; House Education and
Labor Report, supra note 6, at 57-58 with 67-70.

15.  See 42 U.S.C.  12111(10) (1994); 29 C.F.R. 1630.2(p)
(1997); 29 C.F.R. pt. 1630 app. 1630.2(p) (1997).

16.  See 29 C.F.R. pt. 1630 app. 1630.15(d) (1997). See also
Eckles v. Consolidated Rail Corp., 94 F.3d 1041, 1048-49, 5 AD
Cas. (BNA) 1367, 1372-73 (7th Cir. 1996); Bryant v. Better
Business Bureau of Maryland, 923 F. Supp. 720, 740, 5 AD Cas.
(BNA) 625, 638 (D. Md. 1996).

17.  See, e.g., Schmidt v. Safeway Inc., 864 F. Supp. 991, 997,
3 AD Cas. (BNA) 1141, 1146-47 (D. Or. 1994) ("statute does not
require the plaintiff to speak any magic words. . . . The
employee need not mention the ADA or even the term
'accommodation.'"). See also Hendricks-Robinson v. Excel Corp.,
154 F.3d 685, 694, 8 AD Cas. (BNA) 875, 882 (7th Cir. 1998)
("[a] request as straightforward as asking for continued
employment is a sufficient request for accommodation");
Bultemeyer v. Ft. Wayne Community Schs., 100 F.3d 1281, 1285, 6
AD Cas. (BNA) 67, 71 (7th Cir. 1996) (an employee with a known
psychiatric disability requested reasonable accommodation by
stating that he could not do a particular job and by submitting
a note from his psychiatrist); McGinnis v. Wonder Chemical Co.,
5 AD Cas. (BNA) 219 (E.D. Pa. 1995) (employer on notice that
accommodation had been requested because: (1) employee told
supervisor that his pain prevented him from working and (2)
employee had requested leave under the Family and Medical Leave
Act).

Nothing in the ADA requires an individual to use legal terms or
to anticipate all of the possible information an employer may
need in order to provide a reasonable accommodation. The ADA
avoids a formulistic approach in favor of an interactive
discussion between the employer and the individual with a
disability, after the individual has requested a change due to a
medical condition. Nevertheless, some courts have required that
individuals initially provide detailed information in order to
trigger the employer's duty to investigate whether reasonable
accommodation is required. See, e.g., Taylor v. Principal Fin.
Group, Inc., 93 F.3d 155, 165, 5 AD Cas. (BNA) 1653, 1660 (5th
Cir. 1996); Miller v. Nat'l Cas. Co., 61 F.3d 627, 629-30, 4 AD
Cas. (BNA) 1089, 1090-91 (8th Cir. 1995).

18.  See Questions 5 - 7, infra, for a further discussion on
when an employer may request reasonable documentation about a
person's "disability" and the need for reasonable accommodation.

19.  Cf. Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 5
AD Cas. (BNA) 304 (7th Cir. 1996); Schmidt v. Safeway Inc., 864
F. Supp. 991, 997, 3 AD Cas. (BNA) 1141, 1146 (D. Or. 1994). But
see Miller v. Nat'l Casualty Co., 61 F.3d 627, 630, 4 AD Cas.
(BNA) 1089, 1091 (8th Cir. 1995) (employer had no duty to
investigate reasonable accommodation despite the fact that the
employee's sister notified the employer that the employee "was
mentally falling apart and the family was trying to get her into
the hospital").

The employer should be receptive to any relevant information or
requests it receives from a third party acting on the
individual's behalf because the reasonable accommodation process
presumes open communication in order to help the employer make
an informed decision. See 29 C.F.R. 1630.2(o), 1630.9 (1997); 29
C.F.R. pt. 1630 app. 1630.2(o), 1630.9 (1997).

20.  Although individuals with disabilities are not required to
keep records, they may find it useful to document requests for
reasonable accommodation in the event there is a dispute about
whether or when they requested accommodation. Employers,
however, must keep all employment records, including records of
requests for reasonable accommodation, for one year from the
making of the record or the personnel action involved, whichever
occurs later. If a charge is filed, records must be preserved
until the charge is resolved. 29 C.F.R. 1602.14 (1997).

21.  Cf. Masterson v. Yellow Freight Sys., Inc., Nos. 98-6126,
98-6025, 1998 WL 856143 (10th Cir. Dec. 11, 1998) (fact that an
employee with a disability does not need a reasonable
accommodation all the time does not relieve employer from
providing an accommodation for the period when he does need
one).

22.  See 29 C.F.R. 1630.2(o)(3) (1997); 29 C.F.R. pt. 1630 app.
1630.2(o), 1630.9 (1997); see also Haschmann v. Time Warner
Entertainment Co., 151 F.3d 591, 601, 8 AD Cas. (BNA) 692, 700
(7th Cir. 1998); Dalton v. Subaru-Isuzu, 141 F.3d 667, 677, 7 AD
Cas. (BNA) 1872, 1880-81 (7th Cir. 1998). The appendix to the
regulations at 1630.9 provides a detailed discussion of the
reasonable accommodation process.

Engaging in an interactive process helps employers to discover
and provide reasonable accommodation. Moreover, in situations
where an employer fails to provide a reasonable accommodation
(and undue hardship would not be a valid defense), evidence that
the employer engaged in an interactive process can demonstrate a
"good faith" effort which can protect an employer from having to
pay punitive and certain compensatory damages. See 42 U.S.C.
1981a(a)(3) (1994).

23.  See 29 C.F.R. pt. 1630 app. 1630.9 (1997). The Appendix to
this Guidance provides a list of resources to identify possible
accommodations.

24.  29 C.F.R. pt. 1630 app. 1630.9 (1997); see also EEOC
Enforcement Guidance: Preemployment Disability-Related Questions
and Medical Examinations at 6, 8 FEP Manual (BNA) 405:7191, 7193
(1995) [hereinafter Preemployment Questions and Medical
Examinations]; EEOC Enforcement Guidance: The Americans with
Disabilities Act and Psychiatric Disabilities at 22-23, 8 FEP
Manual (BNA) 405:7461, 7472-73 (1997) [hereinafter ADA and
Psychiatric Disabilities]. Although the latter Enforcement
Guidance focuses on psychiatric disabilities, the legal standard
under which an employer may request documentation applies to
disabilities generally.

When an employee seeks leave as a reasonable accommodation, an
employer's request for documentation about disability and the
need for leave may overlap with the certification requirements
of the Family and Medical Leave Act (FMLA), 29 C.F.R.
825.305-.306, 825.310-.311 (1997).

25.  Since a doctor cannot disclose information about a patient
without his/her permission, an employer must obtain a release
from the individual that will permit his/her doctor to answer
questions. The release should be clear as to what information
will be requested. Employers must maintain the confidentiality
of all medical information collected during this process,
regardless of where the information comes from. See Question 41
and note 103, infra.

26.  See Question 9, infra, for information on choosing between
two or more effective accommodations.

27.  This employee also might be covered under the Family and
Medical Leave Act, and if so, the employer would need to comply
with the requirements of that statute.

28.  See Templeton v. Neodata Servs., Inc., No. 98-1106, 1998 WL
852516 (10th Cir. Dec. 10, 1998); Beck v. Univ. of Wis. Bd. of
Regents, 75 F.3d 1130, 1134, 5 AD Cas. (BNA) 304, 307 (7th Cir.
1996); McAlpin v. National Semiconductor Corp., 921 F. Supp.
1518, 1525, 5 AD Cas. (BNA) 1047, 1052 (N.D. Tex. 1996).

29.  See Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 700, 8
AD Cas. (BNA) 875, 887 (7th Cir. 1998).

30.  If an individual provides sufficient documentation to show
the existence of an ADA disability and the need for reasonable
accommodation, continued efforts by the employer to require that
the individual see the employer's health professional could be
considered retaliation.

31.  Employers also may consider alternatives like having their
health professional consult with the individual's health
professional, with the employee's consent.

32.  See 29 C.F.R. pt. 1630 app.  1630.9 (1997); see also
Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278,
1285-86, 6 AD Cas. (BNA) 1834, 1839 (11th Cir. 1997); Hankins v.
The Gap, Inc., 84 F.3d 797, 800, 5 AD Cas. (BNA) 924, 926-27
(6th Cir. 1996); Gile v. United Airlines, Inc., 95 F.3d 492,
499, 5 AD Cas. (BNA) 1466, 1471 (7th Cir. 1996).

33.  29 C.F.R. pt. 1630 app. 1630.9 (1997).

34.  See Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667,
677, 7 AD Cas. (BNA) 1872, 1880 (7th Cir. 1998).

35.  In determining whether there has been an unnecessary delay
in responding to a request for reasonable accommodation,
relevant factors would include: (1) the reason(s) for the delay,
(2) the length of the delay, (3) how much the individual with a
disability and the employer each contributed to the delay, (4)
what the employer was doing during the delay, and (5) whether
the required accommodation was simple or complex to provide.

36.  See 29 C.F.R. pt. 1630 app. 1630.9 (1997); see also Hankins
v. The Gap, Inc., 84 F.3d 797, 801, 5 AD Cas. (BNA) 924, 927
(6th Cir. 1996).

37.  42 U.S.C. 12112(d)(2)(A) (1994); 29 C.F.R. 1630.13(a)
(1997). For a thorough discussion of these requirements, see
Preemployment Questions and Medical Examinations, supra note 24,
at 6-8, 8 FEP Manual (BNA) 405:7193-94.

38.  42 U.S.C. 12112(d)(3) (1994); 29 C.F.R. 1630.14(b) (1997);
see also Preemployment Questions and Medical Examinations, supra
note 24, at 20, 8 FEP Manual (BNA) 405:7201.

39.  See Question 12, supra, for the circumstances under which
an employer may ask an applicant whether s/he will need
reasonable accommodation to perform specific job functions.

40.  The discussions and examples in this section assume that
there is only one effective accommodation and that the
reasonable accommodation will not cause undue hardship.

41.  See 29 C.F.R. pt. 1630 app. 1630.9 (1997).

42.  42 U.S.C. 12181(7), 12182(1)(A), (2)(A)(iii) (1994).

43.  The discussions and examples in this section assume that
there is only one effective accommodation and that the
reasonable accommodation will not cause undue hardship.

The types of reasonable accommodations discussed in this section
are not exhaustive. For example, employees with disabilities may
request reasonable accommodations to modify the work
environment, such as changes to the ventilation system or
relocation of a work space.

See the Appendix for additional resources to identify other
possible reasonable accommodations.

44.  42 U.S.C.  12111(9)(B) (1994); 29 C.F.R. pt. 1630 app.
1630.2(o), 1630.9 (1997); see Benson v. Northwest Airlines,
Inc., 62 F.3d 1108, 1112-13, 4 AD Cas. (BNA) 1234, 1236-37 (8th
Cir. 1995).

45.  29 C.F.R. pt. 1630 app. 1630.2(o) (1997). See Cehrs v.
Northeast Ohio Alzheimer's, 155 F.3d 775, 782, 8 AD Cas. (BNA)
825, 830-31 (6th Cir. 1998).

An employee who needs leave, or a part-time or modified
schedule, as a reasonable accommodation also may be entitled to
leave under the Family and Medical Leave Act. See Questions 21
and 23, infra.

46.  See A Technical Assistance Manual on the Employment
Provisions (Title I) of the Americans with Disabilities Act, at
3.10(4), 8 FEP Manual (BNA) 405:6981, 7011 (1992) [hereinafter
TAM].

47.  42 U.S.C. 12111(9)(B) (1994); 29 C.F.R. 1630.2(o)(2)(ii)
(1997). See also Question 24, infra. While undue hardship cannot
be based solely on the existence of a no-fault leave policy, the
employer may be able to show undue hardship based on an
individualized assessment showing the disruption to the
employer's operations if additional leave is granted beyond the
period allowed by the policy. In determining whether undue
hardship exists, the employer should consider how much
additional leave is needed (e.g., two weeks, six months, one
year?).

48.  See Schmidt v. Safeway Inc., 864 F. Supp. 991, 996-97, 3 AD
Cas. (BNA) 1141, 1145-46 (D. Or. 1994); Corbett v. National
Products Co., 4 AD Cas. (BNA) 987, 990 (E.D. Pa. 1995).

49.  See EEOC Enforcement Guidance: Workers' Compensation and
the ADA at 16, 8 FEP Manual (BNA) 405:7391, 7399 (1996)
[hereinafter Workers' Compensation and the ADA]. See also pp.
37-45, infra, for information on reassignment as a reasonable
accommodation.

50.  Cf. Kiel v. Select Artificials, 142 F.3d 1077, 1080, 8 AD
Cas. (BNA) 43, 44 (8th Cir. 1998).

51.  See Criado v. IBM, 145 F.3d 437, 444-45, 8 AD Cas. (BNA)
336, 341 (1st Cir. 1998).

52.  But see Matthews v. Commonwealth Edison Co., 128 F.3d 1194,
1197-98, 7 AD Cas. (BNA) 1651, 1653-54 (7th Cir. 1997) (an
employee who, because of a heart attack, missed several months
of work and returned on a part-time basis until health permitted
him to work full-time, could be terminated during a RIF based on
his lower productivity). In reaching this decision, the Seventh
Circuit failed to consider that the employee needed leave and a
modified schedule as reasonable accommodations for his
disability, and that the accommodations became meaningless when
he was penalized for using them.

53.  If an employee, however, qualifies for leave under the
Family and Medical Leave Act, an employer may not require
him/her to remain on the job with an adjustment in lieu of
taking leave. See 29 C.F.R. 825.702(d)(1) (1997).

54.  See Question 9, supra.

55.  For more detailed information on issues raised by the
interplay between these statutes, refer to the FMLA/ADA Fact
Sheet listed in the Appendix.

56.  Employers should remember that many employees eligible for
FMLA leave will not be entitled to leave as a reasonable
accommodation under the ADA, either because they do not meet the
ADA's definition of disability or, if they do have an ADA
disability, the need for leave is unrelated to that disability.

57.  29 C.F.R. 825.214(a), 825.215 (1997).

58.  For further information on the undue hardship factors, see
infra p. 54.

59.  29 C.F.R. 825.702(c)(4) (1997).

60.  See Ralph v. Lucent Technologies, Inc., 135 F.3d 166, 172,
7 AD Cas. (BNA) 1345, 1349 (1st Cir. 1998) (a modified schedule
is a form of reasonable accommodation).

61.  Certain courts have characterized attendance as an
"essential function." See, e.g., Carr v. Reno, 23 F.3d 525, 530,
3 AD Cas. (BNA) 434, 438 (D.C. Cir. 1994); Jackson v. Department
of Veterans Admin., 22 F.3d 277, 278-79, 3 AD Cas. (BNA) 483,
484 (11th Cir. 1994). Attendance, however, is not an essential
function as defined by the ADA because it is not one of "the
fundamental job duties of the employment position." 29 C.F.R.
1630.2(n)(1) (1997) (emphasis added). As the regulations make
clear, essential functions are duties to be performed. 29 C.F.R.
1630.2(n)(2) (1997). See Haschmann v. Time Warner Entertainment
Co., 151 F.3d 591, 602, 8 AD Cas. (BNA) 692, 701 (7th Cir.
1998); Cehrs v. Northeast Ohio Alzheimer's, 155 F.3d 775,
782-83, 8 AD Cas. (BNA) 825, 830-31 (6th Cir. 1998).

On the other hand, attendance is relevant to job performance and
employers need not grant all requests for a modified schedule.
To the contrary, if the time during which an essential function
is performed is integral to its successful completion, then an
employer may deny a request to modify an employee's schedule as
an undue hardship.

62.  Employers covered under the Family and Medical Leave Act
(FMLA) should determine whether any denial of leave or a
modified schedule is also permissible under that law. See 29
C.F.R. 825.203 (1997).

63.  For more detailed information on issues raised by the
interplay between these statutes, refer to the FMLA/ADA Fact
Sheet listed in the Appendix.

64.  See infra pp. 37-45 for more information on reassignment,
including under what circumstances an employer and employee may
voluntarily agree that a transfer is preferable to having the
employee remain in his/her current position.

65.  29 C.F.R. 825.204 (1997); see also special rules governing
intermittent leave for instructional employees at 825.601,
825.602.

66.  29 C.F.R. 825.209, 825.210 (1997).

67.  42 U.S.C. 12111(9)(B) (1994); 29 C.F.R. 1630.2(o)(2)(ii)
(1997).

68.  See Dutton v. Johnson County Bd. of Comm'rs, 868 F. Supp.
1260, 1264-65, 3 AD Cas. (BNA) 1614, 1618 (D. Kan. 1994).

69.  See 29 C.F.R. pt. 1630 app. 1630.15(b), (c) (1997). See
also Question 17, supra.

70.  But cf. Miller v. Nat'l Casualty Co., 61 F.3d 627, 629-30,
4 AD Cas. (BNA) 1089, 1090 (8th Cir. 1995) (court refuses to
find that employee's sister had requested reasonable
accommodation despite the fact that the sister informed the
employer that the employee was having a medical crisis
necessitating emergency hospitalization).

71.  Pursuant to the Rehabilitation Act Amendment of 1992, the
ADA's employment standards apply to all non-affirmative action
employment discrimination claims filed by federal applicants or
employees with disabilities under section 501 of the
Rehabilitation Act. Pub. L. No. 102-569, 503(b), 106 Stat. 4344
(1992) (codified as amended at 29 U.S.C. 791(g) (1994)). The
Rehabilitation Act regulations governing reassignment of federal
employees with disabilities, which were promulgated several
months prior to the enactment of the Rehabilitation Act
Amendment, differ in several respects from the ADA's
requirements. See 29 C.F.R. 1614.203(g) (1997). For
non-discrimination purposes, federal agencies must follow the
ADA standards.

For information on how reassignment may apply to employers who
provide light duty positions, see Workers' Compensation and the
ADA, supra note 49, at 20-23, 8 FEP Manual (BNA) 405:7401-03.

72.  42 U.S.C.  12111(9)(B) (1994); 29 C.F.R.  1630.2(o)(2)(ii)
(1997). See Benson v. Northwest Airlines, Inc., 62 F.3d 1108,
1114, 4 AD Cas. (BNA) 1234, 1238 (8th Cir. 1995); Monette v.
Electronic Data Sys. Corp., 90 F.3d 1173, 1187, 5 AD Cas. (BNA)
1326, 1338 (6th Cir. 1996); Gile v. United Airlines, Inc., 95
F.3d 492, 498, 5 AD Cas. (BNA) 1466, 1471 (7th Cir. 1996).

Reassignment is available only to employees, not to applicants.
29 C.F.R. pt. 1630 app. 1630.2(o) (1997).

73.  29 C.F.R. pt. 1630 app. 1630.2(o) (1997); see Haysman v.
Food Lion, Inc., 893 F. Supp. 1092, 1104, 4 AD Cas. (BNA) 1297,
1305 (S.D. Ga. 1995).

Some courts have found that an employee who is unable to perform
the essential functions of his/her current position is
unqualified to receive a reassignment. See, e.g., Schmidt v.
Methodist Hosp. of Indiana, Inc., 89 F.3d 342, 345, 5 AD Cas.
(BNA) 1340, 1342 (7th Cir. 1996); Pangalos v. Prudential Ins.
Co. of Am., 5 AD Cas. (BNA) 1825, 1826 (E.D. Pa. 1996). These
decisions, however, nullify Congress' inclusion of reassignment
in the ADA. An employee requires a reassignment only if s/he is
unable to continue performing the essential functions of his/her
current position, with or without reasonable accommodation.
Thus, an employer must provide reassignment either when
reasonable accommodation in an employee's current job would
cause undue hardship or when it would not be possible. See Aka
v. Washington Hosp. Ctr.,156 F.3d 1284, 1300-01, 8 AD Cas. (BNA)
1093, 1107-08 (D.C. Cir. 1998); Dalton v. Subaru-Isuzu
Automotive, Inc., 141 F.3d 667, 678, 7 AD Cas. (BNA) 1872, 1880
(7th Cir. 1998); see also ADA and Psychiatric Disabilities,
supra note 24, at 28, 8 FEP Manual (BNA) 405:7476; Workers'
Compensation and the ADA, supra note 49, at 17-18, 8 FEP Manual
(BNA) 405:7399-7400.

74.  29 C.F.R. 1630.2(m) (1997); 29 C.F.R. pt. 1630 app.
1630.2(m), 1630.2(o) (1997). See Stone v. Mount Vernon, 118 F.3d
92, 100-01, 6 AD Cas. (BNA) 1685, 1693 (2d Cir. 1997).

75.  See Quintana v. Sound Distribution Corp., 6 AD Cas. (BNA)
842, 846 (S.D.N.Y. 1997).

76.  See 29 C.F.R. pt. 1630 app. 1630.2(o) (1997); Senate
Report, supra note 6, at 31; House Education and Labor Report,
supra note 6, at 63.

77.  For suggestions on what the employee can do while waiting
for a position to become vacant within a reasonable amount of
time, see note 86, infra.

78.  See 29 C.F.R. pt. 1630 app. 1630.2(o) (1997); see also
White v. York Int'l Corp., 45 F.3d 357, 362, 3 AD Cas. (BNA)
1746, 1750 (10th Cir. 1995).

79.  See 29 C.F.R. pt. 1630 app. 1630.2(o) (1997).

80.  The current regulation governing reassignment of federal
employees states that reassignment is available to
"nonprobationary" employees. See 29 C.F.R. 1614.203(g) (1997).
This regulation does not state the applicable ADA
non-discrimination standard. See note 71, supra.

81.  See Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1304-05, 8
AD Cas. (BNA) 1093, 1110-11 (D.C. Cir. 1998); United States v.
Denver, 943 F. Supp. 1304, 1312, 6 AD Cas. (BNA) 245, 252 (D.
Colo. 1996). See also Question 24, supra.

82.  42 U.S.C. 12111(9)(B) (1994); 29 C.F.R. 1630.2(o)(2)(ii)
(1997); see Hendricks-Robinson v. Excel Corp., 154 F.3d 685,
695, 8 AD Cas. (BNA) 875, 883 (7th Cir. 1998); see generally
Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 677-78, 7
AD Cas. (BNA) 1872, 1880-81 (7th Cir. 1998).

83.  See Gile v. United Airlines, Inc., 95 F.3d 492, 499, 5 AD
Cas. (BNA) 1466, 1472 (7th Cir. 1996); see generally United
States v. Denver, 943 F. Supp. 1304, 1311-13, 6 AD Cas. (BNA)
245, 251-52 (D. Colo. 1996).

Some courts have limited the obligation to provide a
reassignment to positions within the same department or facility
in which the employee currently works, except when the
employer's standard practice is to provide inter-department or
inter-facility transfers for all employees. See, e.g., Emrick v.
Libbey-Owens-Ford Co., 875 F. Supp. 393, 398, 4 AD Cas. (BNA) 1,
4-5 (E.D. Tex. 1995). However, the ADA requires modification of
workplace policies, such as transfer policies, as a form of
reasonable accommodation. See Question 24, supra. Therefore,
policies limiting transfers cannot be a per se bar to
reassigning someone outside his/her department or facility.
Furthermore, the ADA requires employers to provide reasonable
accommodations, including reassignment, regardless of whether
such accommodations are routinely granted to non-disabled
employees. See Question 26, supra.

84.  See Hendricks-Robinson v. Excel Corp., 154 F.3d 685,
695-96, 697-98, 8 AD Cas. (BNA) 875, 883, 884 (7th Cir. 1998)
(employer cannot mislead disabled employees who need
reassignment about full range of vacant positions; nor can it
post vacant positions for such a short period of time that
disabled employees on medical leave have no realistic chance to
learn about them); Mengine v. Runyon, 114 F.3d 415, 420, 6 AD
Cas. (BNA) 1530, 1534 (3d Cir. 1997) (an employer has a duty to
make reasonable efforts to assist an employee in identifying a
vacancy because an employee will not have the ability or
resources to identify a vacant position absent participation by
the employer); Woodman v. Runyon, 132 F.3d 1330, 1344, 7 AD Cas.
(BNA) 1189, 1199 (10th Cir. 1997) (federal employers are far
better placed than employees to investigate in good faith the
availability of vacant positions).

85.  See Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667,
678, 7 AD Cas. (BNA) 1872, 1881 (7th Cir. 1998) (employer must
first identify full range of alternative positions and then
determine which ones employee qualified to perform, with or
without reasonable accommodation); Hendricks-Robinson v. Excel
Corp., 154 F.3d 685, 700, 8 AD Cas. (BNA) 875, 886-87 (7th Cir.
1998) (employer's methodology to determine if reassignment is
appropriate does not constitute the "interactive process"
contemplated by the ADA if it is directive rather than
interactive); Mengine v. Runyon, 114 F.3d 415, 419-20, 6 AD Cas.
(BNA) 1530, 1534 (3d Cir. 1997) (once an employer has identified
possible vacancies, an employee has a duty to identify which one
he is capable of performing).

86.  If it will take several weeks to determine whether an
appropriate vacant position exists, the employer and employee
should discuss the employee's status during that period. There
are different possibilities depending on the circumstances, but
they may include: use of accumulated paid leave, use of unpaid
leave, or a temporary assignment to a light duty position.
Employers also may choose to take actions that go beyond the
ADA's requirements, such as eliminating an essential function of
the employee's current position, to enable an employee to
continue working while a reassignment is sought.

87.  42 U.S.C. 12111(9)(b) (1994); 29 C.F.R. pt. 1630 app.
1630.2(o) (1997). See Senate Report, supra note 6, at 31 ("If an
employee, because of disability, can no longer perform the
essential functions of the job that she or he has held, a
transfer to another vacant job for which the person is qualified
may prevent the employee from being out of work and the employer
from losing a valuable worker."). See Wood v. County of Alameda,
5 AD Cas. (BNA) 173, 184 (N.D. Cal. 1995) (when employee could
no longer perform job because of disability, she was entitled to
reassignment to a vacant position, not simply an opportunity to
"compete"); cf. Aka v. Washington Hosp. Ctr., 156 F.3d 1284,
1304-05, 8 AD Cas. (BNA) 1093, 1110-11 (D.C. Cir. 1998) (the
court, in interpreting a collective bargaining agreement
provision authorizing reassignment of disabled employees, states
that "[a]n employee who is allowed to compete for jobs precisely
like any other applicant has not been "reassigned"); United
States v. Denver, 943 F. Supp. 1304, 1310-11, 6 AD Cas. (BNA)
245, 250 (D. Colo. 1996) (the ADA requires employers to move
beyond traditional analysis and consider reassignment as a
method of enabling a disabled worker to do a job).

Some courts have suggested that reassignment means simply an
opportunity to compete for a vacant position. See, e.g.,
Daugherty v. City of El Paso, 56 F.3d 695, 700, 4 AD Cas. (BNA)
993, 997 (5th Cir. 1995). Such an interpretation nullifies the
clear statutory language stating that reassignment is a form of
reasonable accommodation. Even without the ADA, an employee with
a disability may have the right to compete for a vacant
position.

88.  29 C.F.R. pt. 1630 app. 1630.2(o) (1997).

89.  The discussions and examples in this section assume that
there is only one effective accommodation and that the
reasonable accommodation will not cause an undue hardship.

90.  See Ralph v. Lucent Technologies, Inc., 135 F.3d 166, 171,
7 AD Cas. (BNA) 1345, 1349 (1st Cir. 1998).

91.  For a discussion on ways to modify supervisory methods, see
ADA and Psychiatric Disabilities, supra note 24, at 26-27, 8 FEP
Manual (BNA) 405:7475.

92.  See 29 C.F.R. 1630.2(o)(1)(ii), (2)(ii) (1997)
(modifications or adjustments 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).

93.  Courts have differed regarding whether "work-at-home" can
be a reasonable accommodation. Compare Langon v. Department of
Health and Human Servs., 959 F.2d 1053, 1060, 2 AD Cas. (BNA)
152, 159 (D.C. Cir. 1992); Anzalone v. Allstate Insurance Co., 5
AD Cas. (BNA) 455, 458 (E.D. La. 1995); Carr v. Reno, 23 F.3d
525, 530, 3 AD Cas. (BNA) 434, 437-38 (D.D.C. 1994), with Vande
Zande v. Wisconsin Dep't of Admin., 44 F.3d 538, 545, 3 AD Cas.
(BNA) 1636, 1640 (7th Cir. 1995). Courts that have rejected
working at home as a reasonable accommodation focus on evidence
that personal contact, interaction, and coordination are needed
for a specific position. See, e.g., Whillock v. Delta Air Lines,
926 F. Supp. 1555, 1564, 5 AD Cas. (BNA) 1027 (N.D. Ga. 1995),
aff'd, 86 F.3d 1171, 7 AD Cas. (BNA) 1267 (11th Cir. 1996);
Misek-Falkoff v. IBM Corp., 854 F. Supp. 215, 227-28, 3 AD Cas.
(BNA) 449, 457-58 (S.D.N.Y. 1994), aff'd, 60 F.3d 811, 6 AD Cas.
(BNA) 576 (2d Cir. 1995).

94.  See 29 C.F.R. 1630.15(d) (1997).

95.  See Siefken v. Arlington Heights, 65 F.3d 664, 666, 4 AD
Cas. (BNA) 1441, 1442 (7th Cir. 1995). Therefore, it may be in
the employee's interest to request a reasonable accommodation
before performance suffers or conduct problems occur. For more
information on conduct standards, including when they are
job-related and consistent with business necessity, see ADA and
Psychiatric Disabilities, supra note 24, at 29-32, 8 FEP Manual
(BNA) 405:7476-78.

An employer does not have to offer a "firm choice" or a "last
chance agreement" to an employee who performs poorly or who has
engaged in misconduct because of alcoholism. "Firm choice" or
"last chance agreements" involve excusing past performance or
conduct problems resulting from alcoholism in exchange for an
employee's receiving substance abuse treatment and refraining
from further use of alcohol. Violation of such an agreement
generally warrants termination. Since the ADA does not require
employers to excuse poor performance or violation of conduct
standards that are job-related and consistent with business
necessity, an employer has no obligation to provide "firm
choice" or a "last chance agreement" as a reasonable
accommodation. See Johnson v. Babbitt, EEOC Docket No. 03940100
(March 28, 1996). However, an employer may choose to offer an
employee a "firm choice" or a "last chance agreement."

96.  See ADA and Psychiatric Disabilities, supra note 24, at
31-32, 8 FEP Manual (BNA) 405:7477-78.

97.  See Robertson v. The Neuromedical Ctr., 161 F.3d 292, 296
(5th Cir. 1998); see also ADA and Psychiatric Disabilities,
supra note 24, at 27-28, 8 FEP Manual (BNA) 405:7475.

98.  While from an employer's perspective it may appear that an
employee is "failing" to use medication or follow a certain
treatment, such questions can be complex. There are many reasons
why a person would choose to forgo treatment, including expense
and serious side effects.

99.  See Vande Zande v. Wisconsin Dep't of Admin., 44 F.3d 538,
544, 3 AD Cas. (BNA) 1636, 1639 (7th Cir. 1995).

100.  See 29 C.F.R. pt. 1630 app. 1630.9 (1997); see also House
Judiciary Report, supra note 6, at 39; House Education and Labor
Report, supra note 6, at 65; Senate Report, supra note 6, at 34.

See, e.g., Taylor v. Principal Fin. Group, Inc., 93 F.3d 155,
165, 5 AD Cas. (BNA) 1653, 1659 (5th Cir. 1996); Tips v. Regents
of Texas Tech Univ., 921 F. Supp. 1515, 1518 (N.D. Tex. 1996);
Cheatwood v. Roanoke Indus., 891 F. Supp. 1528, 1538, 5 AD Cas.
(BNA) 141, 147 (N.D. Ala. 1995); Mears v. Gulfstream Aerospace
Corp., 905 F. Supp. 1075, 1080, 5 AD Cas. (BNA) 1295, 1300 (S.D.
Ga. 1995), aff'd, 87 F.3d 1331, 6 AD Cas. (BNA) 1152 (11th Cir.
1996). But see Schmidt v. Safeway Inc., 864 F. Supp. 991, 997, 3
AD Cas. (BNA) 1141, 1146-47 (D. Or. 1994) (employer had
obligation to provide reasonable accommodation because it knew
of the employee's alcohol problem and had reason to believe that
an accommodation would permit the employee to perform the job).

An employer may not assert that it never received a request for
reasonable accommodation, as a defense to a claim of failure to
provide reasonable accommodation, if it actively discouraged an
individual from making such a request.

For more information about an individual requesting reasonable
accommodation, see Questions 1-4, supra.

101.  See Question 5, supra, for information on the interactive
process.

102.  29 C.F.R. pt. 1630 app. 1630.9 (1997).

103.  42 U.S.C. 12112(d)(3)(B), (d)(4)(C) (1994); 29 C.F.R.
1630.14(b)(1) (1997). The limited exceptions to the ADA
confidentiality requirements are:

(1) supervisors and managers may be told about necessary
restrictions on the work or duties of the employee and about
necessary accommodations; (2) first aid and safety personnel may
be told if the disability might require emergency treatment; and

(3) government officials investigating compliance with the ADA
must be given relevant information on request. In addition, the
Commission has interpreted the ADA to allow employers to
disclose medical information in the following circumstances: (1)
in accordance with state workers' compensation laws, employers
may disclose information to state workers' compensation offices,
state second injury funds, or workers' compensation insurance
carriers; and (2) employers are permitted to use medical
information for insurance purposes. See 29 C.F.R. pt. 1630 app.
1630.14(b) (1997); Preemployment Questions and Medical
Examinations, supra note 24, at 23, 8 FEP Manual (BNA) 405:7201;
Workers' Compensation and the ADA, supra note 49, at 7, 8 FEP
Manual (BNA) 405:7394.

104.  The discussions and examples in this section assume that
there is only one effective accommodation.

105.  See 29 C.F.R. pt. 1630 app. 1630.15(d) (1996); see also
Stone v. Mount Vernon, 118 F.3d 92, 101, 6 AD Cas. (BNA) 1685,
1693 (2d Cir. 1997) (an employer who has not hired any persons
with disabilities cannot claim undue hardship based on
speculation that if it were to hire several people with
disabilities it may not have sufficient staff to perform certain
tasks); Bryant v. Better Business Bureau of Greater Maryland,
923 F. Supp. 720, 735, 5 AD Cas. (BNA) 625, 634 (D. Md. 1996).

106.  See 42 U.S.C. 12111(10)(B) (1994); 29 C.F.R. 1630.2(p)(2)
(1997); 29 C.F.R. pt. 1630 app. 1630.2(p) (1997); TAM, supra
note 46, at 3.9, 8 FEP Manual (BNA) 405:7005-07.

107.  See Senate Report, supra note 6, at 36; House Education
and Labor Report, supra note 6, at 69. See also 29 C.F.R. pt.
1630 app. 1630.2(p) (1997).

108.  See the Appendix on how to obtain information about the
tax credit and deductions.

109.  See 29 C.F.R. pt. 1630 app. 1630.15(d) (1997).

110.  Failure to transfer marginal functions because of its
negative impact on the morale of other employees also could
constitute disparate treatment when similar morale problems do
not stop an employer from reassigning tasks in other situations.

111.  See Haschmann v. Time Warner Entertainment Co., 151 F.3d
591, 600-02, 8 AD Cas. (BNA) 692, 699-701 (7th Cir. 1998).

112.  See Criado v. IBM, 145 F.3d 437, 444-45, 8 AD Cas. (BNA)
336, 341 (1st Cir. 1998).

113.  The ADA's definition of undue hardship does not include
any consideration of a cost-benefit analysis. See 42 U.S.C.
12111(10) (1994); see also House Education and Labor Report,
supra note 6, at 69 ("[T]he committee wishes to make clear that
the fact that an accommodation is used by only one employee
should not be used as a negative factor counting in favor of a
finding of undue hardship.").

Furthermore, the House of Representatives rejected a
cost-benefit approach by defeating an amendment which would have
presumed undue hardship if a reasonable accommodation cost more
than 10% of the employee's annual salary. See 136 Cong. Rec.
H2475 (1990), see also House Judiciary Report, supra note 6, at
41; 29 C.F.R. pt. 1630 app. 1630.15(d) (1997).

Despite the statutory language and legislative history, some
courts have applied a cost-benefit analysis. See, e.g., Monette
v. Electronic Data Sys. Corp., 90 F.3d 1173, 1184 n.10, 5 AD
Cas. (BNA) 1326, 1335 n.10 (6th Cir. 1996); Vande Zande v.
Wisconsin Dep't of Admin., 44 F.3d 538, 543, 3 AD Cas. (BNA)
1636, 1638-39 (7th Cir. 1995).

114.  The current regulation governing reassignment of federal
employees states that Postal Service workers with disabilities
shall not be considered qualified for a reassignment to the
extent that it would be inconsistent with the terms of a
collective bargaining agreement. See 29 C.F.R. 1614.203(g)
(1997). This regulation does not state the applicable ADA
non-discrimination standard when there is a conflict between a
collective bargaining agreement and the need to provide a
reassignment to an employee with a disability.

115.  See 42 U.S.C. 12111(10) (1994). Certain circuits have held
that it is an undue hardship to provide a reasonable
accommodation when doing so will violate the seniority
provisions of a collective bargaining agreement. See Eckles v.
Consolidated Rail Corp., 94 F.3d 1041, 1048, 5 AD Cas. (BNA)
1367, 1372 (7th Cir. 1996); Kralik v. Durbin, 130 F.3d 76, 83, 7
AD Cas. (BNA) 1040, 1045-46 (3d Cir. 1997). These decisions
create a virtual per se rule that the ADA does not mandate as a
reasonable accommodation an action that infringes on the
seniority rights of another employee in a collective bargaining
agreement. In the EEOC's view, such a per se rule nullifies
Congress' intent that undue hardship always be determined on a
case-by-case basis. See House Judiciary Report, supra note 6, at
42. Indeed, Congress believed employers could consider the terms
of a collective bargaining agreement as one factor, but not the
determining factor, in assessing undue hardship. See Senate
Report, supra note 6, at 32; House Education and Labor Report,
supra note 6, at 63. Finally, both Eckles and Kralik rely
heavily upon pre-ADA Rehabilitation Act case law, despite the
fact that Congress amended that statute by incorporating the
ADA's employment discrimination provisions. See 29 U.S.C.
791(g), 793(d), 794(d) (1994).

116.  See 42 U.S.C. 12112(b)(2) (1994); 29 C.F.R. 1630.6 (1997)
(prohibiting an employer from participating in a contractual
relationship that has the effect of subjecting qualified
applicants or employees with disabilities to discrimination).

117.  See 42 U.S.C. 12203(b) (1994); 29 C.F.R. 1630.12(b)
(1997).

118.  For example, under Title III of the ADA a private entity
that owns a building in which goods and services are offered to
the public has an obligation, subject to certain limitations, to
remove architectural barriers so that people with disabilities
have equal access to these goods and services. 42 U.S.C.
12182(b)(2)(A)(iv) (1994). Thus, the requested modification may
be something that the property owner should have done to comply
with Title III.

This page was last modified on March 2, 1999.

----------
End of Document

.

