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Complying with
EEOC Guidelines |
Complying with the requirements of the Americans with Disabilities Act can seem like an impossible task. The regulations continually evolve and the courts keep handing down decisions that seem to conflict with one another.
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Undue Hardship
The EEOC won't force a company to provide reasonable accommodation if it would cause undue hardship on the firm. The agency lists several factors in its test for undue hardship:
Nature and cost of the accommodation.
Financial resources of the facility making the changes, number of staff and effect on the resources.
The nature of the business.
The impact of the accommodation on the facility's operation.
Click here for the full EEOC guidance. |
The law went into effect in 1990. A decade later, the Equal Employment Opportunity Commission issued guidelines aimed at clarifying many of the disputed issues involving "reasonable accommodation."
As with past EEOC guidance, the federal courts will determine whether to defer to, give significant weight to, or reject the new guidance. In the meantime, employers need to become familiar with the new guidelines.
Here are highlights of the most important changes, followed by examples. These guidelines are required only if they don't cause undue hardship on the employer (See box to the right). And generally, an individual with a disability must inform the employer that an accommodation is needed.
To help stay out of court, closely scrutinize the guidance and discuss it with your attorney and human resources staff.
Job applications. Qualified disabled job applicants must have an equal opportunity to participate in the application process and be considered for a job.
| Example: You must hire an interpreter to interview a deaf applicant who meets initial job requirements, even if you initially believe you couldn't provide reasonable accommodation and the applicant couldn't perform the job. |
Home work. You must modify your policy about where work is performed. In other words, you may have to let a disabled employee work at home. However, this is only necessary when the essential functions of the job can be done at home. This issue is likely to gain significance as technology becomes more affordable and widespread.
| Example: Telemarketers, proofreaders, writers and programmers could probably perform the job's essential functions from home, while food servers, security guards and cashiers could not. |
Scheduling changes. You must let a disabled employee work a modified or part-time schedule. This may involve altering arrival and departure times, providing periodic breaks, or changing the time when tasks are performed. However, you don't have to make changes if timing is critical and accommodation significantly disrupts operations.
| Example: A morning newspaper that only prints its editions overnight isn't required to provide daytime work to printing press operators. |
Time off requests: You must provide leave to an employee even if he or she can't provide a date of return or can only estimate the date. You can, however, require periodic updates on the employee's condition and ask for a possible return date. You aren't required to provide paid leave beyond what the Family and Medical Leave Act requires or beyond what similarly ranked employees get.
| Example: If a disabled employee needs more unpaid leave than is normal at your company, you must let the individual use up paid leave and take the remaining time unpaid. |
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Checklist for Investigators
Here are just a few of the questions that EEOC investigators ask to determine a violation of reasonable accommodation:
Is the worker otherwise qualified for the job?
Did the employee ask for accommodation?
Did the employer offer a different accommodation and why?
What should the employer have provided?
Why is the employer claiming undue hardship? | Reassignment. Transferring an employee to another job is a reasonable accommodation of last resort.
You must offer reassignment if the disabled employee is qualified for the job, but you aren't required to help the employee become qualified. In other words, training is not required.
Be careful: You must offer reassignment even when the employee isn't the best qualified.
And you can't limit reassignment by keeping the employee within the same office, branch, agency, department, facility, or geographical area. The extent to which you must search for a vacant position will be an issue closely analyzed for undue hardship.
| Example: If you plan to reassign someone to a position that requires fluency in Spanish, you aren't required to give the employee Spanish lessons. |
Make sure your company policies are in compliance with the ADA. According to the EEOC, the landscape has changed and employers must change with it.
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