Providing an accommodation to an employee under the Americans with Disabilities Act of 1990 (“ADA”) can be daunting for employers. We've compiled a list of the questions we hear most from clients to help simplify the process. For more information and additional guidance specific to your circumstances, please contact our Employment Law practitioner, Kate Heredia.
1. What is a “disability” under the ADA?
- A physical or mental impairment that substantially limits one or major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment.
2. Does the employee need to inform the employer that an accommodation is needed to trigger the ADA process?
- Generally, yes; however, an accommodation must be provided if a supervisor or manager knows or should know that the employee is experiencing workplace problems because of a disability.
3. What are the employer's responsibilities once put on notice of an employee's disability?
- Meet with the employee as soon as possible, ideally in person, to determine the specific limitations created by the disability and to explore potential accommodations.
- Provide the employee with an appropriate reasonable accommodation.
- Document everything in writing, including details of all discussions with the employee and their healthcare provider, and maintain records of all forms and correspondence. The employee should receive correspondence summarizing the accommodations provided.
4. Is the employer permitted to ask about the employee's disability?
- Yes. The employer may inquire about the extent of the impairment and the employee's functional limitations, including corresponding with the employee's health care providers with the employee's advanced written permission, provided that the requested information be limited to what is necessary to determine whether the employee is able to perform the job's essential duties.
5. Is the employer obligated to provide the specific accommodation requested by the employee?
- Generally, no. With some exceptions, if the employer can find an accommodation that allows the employee to perform the job's essential duties and does not impose unreasonable conditions on the employee, the employer may implement its proposed accommodation, particularly if it is less expensive or less burdensome to the employer.
6. Can an accommodation be modified once implemented?
- Yes. The employee's supervisor must monitor the employee's performance and if a particular accommodation is not effective, it may be necessary to engage in further dialogue to determine a different or additional accommodation.
7. What are some examples of reasonable accommodations?
- Restructuring a position, including transferring non-essential duties to another position;
- Reassigning the employee to an open position;
- Allowing a modified work schedule, such as part-time work, starting later or leaving earlier;
- Unpaid leave (accrued paid leave may be exhausted first, and an employer can require the employee to provide periodic updates if a return-to-work date is not certain);
- Acquiring or modifying equipment or devices.
8. What obligations does the employer have once the accommodation is no longer needed?
- The employer must return the employee to their original position with full duties.
9. When does an employer not have to accommodate an employee?
- When doing so causes a direct threat to the employee or co-workers; or
- the accommodation would create (or does create) an undue burden on the employer.
10. What constitutes an undue burden?
- Any action that is unduly costly, extensive, disruptive and/or that fundamentally alters the nature or operation of the business. Some factors that are considered are: cost of the accommodation, financial resources of the employer, size of the employer, effect of the accommodation on the office's operations and/or co-workers' performance, and safety concerns.