Navigating the Challenges of ADA
Understanding Reasonable Accommodations and the Interactive ProcessFederal law pertaining to disability discrimination can be challenging to navigate for employers.
For example, an employee, Jill, does not say to her supervisor, “I need a reasonable accommodation for my disability.” Instead, she says, “I’m having a hard time getting to work on time because of the medical treatments I’m undergoing.” And an employee, Jack, does not say to his supervisor, “I am a qualified individual with a disability, and I’m exercising my rights under the Americans with Disabilities Act.” Instead, he says, “my wheelchair doesn’t fit under my desk.”
These examples illustrate one challenge that employers face under the ADA: identifying requests for accommodation. The law does not require an employee to make any reference to the ADA or use any magic words, such as ‘disability’ or ‘reasonable accommodation,’ when requesting an accommodation.
Thus, supervisors and managers need to be able to recognize the variety of ways in which a request for an accommodation may be articulated. Jill did not explicitly request a change to her work schedule, and Jack did not explicitly ask that a modification be made to his workspace; however, in both scenarios there is either an expressed or obvious connection to a medical condition or impairment that might be a disability. Both Jack and Jill are making requests for a reasonable accommodation.
The ADA requires that an employer provide a reasonable accommodation to an applicant or employee with a disability, unless such accommodation would cause an undue hardship to the employer. A reasonable accommodation is a modification or change to the workplace that enables an individual with a disability to apply for a job, perform job duties, or enjoy the benefits and privileges of employment.
Reasonable accommodations are determined on a case-by-case basis and may include, for example, modifying work schedules, granting time off, making the workplace accessible by wheelchair, or providing an interpreter. An employer does not have to provide an accommodation if it would cause undue hardship to the employer. Whether an accommodation would cause undue hardship is evaluated in light of the difficulty of providing such accommodation, the disruption to the employer’s operations, and the cost in relation to the financial resources of the employer. The difficultly, disruption, or expense must be significant.
Another difficult area of the ADA that employers must tackle is engaging in the interactive process with an employee with a disability in need of accommodation. The interactive process is simply an informal, interactive dialogue between the employer and the employee to identify the limitations resulting from the disability and discuss reasonable accommodation options. There should be direct communication between the employer and the employee in which both parties explore possible accommodations. The employee may offer options for what he or she thinks would be the most effective and preferred accommodation, and the employer may offer alternative suggestions. The goal of the interactive process is that the employer and the employee work together in identifying reasonable and effective accommodations.
The interactive process does not require that an employer provide the employee’s preferred accommodation. If there is more than one effective accommodation, the employer has the discretion to choose the most-cost-effective, least-burdensome accommodation.
For example, an employee, Sarah, has a severe learning disability, and reading is extremely difficult. Her supervisor sends her detailed written memoranda that she has trouble understanding. However, she has no difficulty understanding oral communication. Sarah requests that her employer install a computer program with voice output, and that her supervisor send all written memoranda through e-mail, which the computer can then read to her. The supervisor asks whether a digital voice recorder would accomplish the same objective, and Sarah agrees that it would.
Since both accommodations are effective, the employer may choose to provide a digital voice recorder so that Sarah’s supervisor can record her memoranda and then Sarah can listen to them.
In recent years, federal law has greatly expanded the definition of disability, thus making it easier for disabled individuals to come within the ADA’s protection. As a result of this broadening of the scope of protection, there has been a shift in disability-discrimination cases from determining whether an employee is disabled under the law to whether an employer complied with its obligations under the ADA. This also means that, as more employees fall under the protection of the ADA, there are more occasions for employers to face the risk of non-compliance.
One way employers can reduce their risk is to ensure that they are prepared to navigate difficult issues that arise under the ADA. Toward this end, supervisors and managers should be trained to identify a request or need for an accommodation. In addition, once an issue is identified, the individual(s) responsible for handling such requests must be properly prepared to engage in an interactive dialogue with the employee.
Karina L. Schrengohst, Esq. specializes exclusively in management-side labor and employment law at Royal LLP, a woman-owned, boutique, management-side labor- and employment-law firm; (413) 586-2288; [email protected]