What rights do employers have when handling ADA reasonable accommodation requests?

Noteworthy.

Several Points of Real Help to Employers

The holidays are near so, for once, I’m going to be upbeat and not my normal grouchy self. The EEOC commissioners made several points of real help to employers.

The EEOC is drafting new accommodations guidance, and it may include information for what you should tell coworkers who resent the accommodation because they don’t know the person has a disability. Keeping it confidential usually means you say nothing to anyone, which is probably not in the best interest of anyone. Guidance that acknowledges that would be a breath of fresh air.

Commissioner Lipnic said that employers should contact any worker who is about to exhaust his or her medical leave and ask whether an accommodation or more leave will let them return to work. According to her, that would probably avoid creating the auto-termination problem. I sure hope that any extension of leave is only short, but Ms. Lipnic makes a good point.

Commissioner Feldblum cautions termination decisions made when someone’s leave runs out should be made by decision-makers aware of the ADA, not by third-party administrators who don’t know the ADA.

All the Rights That Employers Have

Sing a line from a Christmas carol, and let’s talk about all the rights that you have that the EEOC thinks you have.

First, you have the right to deal with reasonable accommodations in exactly the same way as you did before the ADA Amendments Act. It merely revised the definition of disability.

The second right that you have, according to the EEOC, is to evaluate every individual request independently and consider the job, the medical condition and the applicant or employee’s functional abilities and limitations on a case-by-case basis rather than imposing a hard-and-fast “policy”. (OK, I wouldn’t call it a “right” per se, but it’s still good for business, which is almost as good.)

Another right you have is to refuse an accommodation to someone who is merely “regarded as” disabled, unless the individual also has an actual disability. If he or she has both an actual disability and is “regarded as” disabled, you have to consider the accommodation.

Then there’s the Fourth Right: under the ADA, you have to remove barriers to the application process that face disabled applicants, but it’s OK to hire the best-qualified person. Hooray!

Fifth, according to Commissioner Feldblum, the disabled employee has the obligation to get the work done. You have the obligation to stop, think, and justify your work requirements and change if necessary, but needn’t give up the work.

Right Number Six. As a general rule, you don’t have to do anything unless an employee or an applicant asks. The employee or applicant has to ask unless the disability is obvious. Warning: To ask for an accommodation, plain English is OK — you don’t have to use the word ADA or even say reasonable accommodation.

Seventh, you have the right to ask for documentation before deciding whether you should offer an accommodation. Commissioner Feldblum said this was “absolutely legitimate”. Commissioner Lipnic said that the employer has to have some awareness that a request is being made (see “plain English” above).

Eighth, even if an employee exhausts his or her FMLA leave (or your company leave) entitlement, they may still be entitled to an additional period of leave as an accommodation. But, once the 12 or 26 weeks of FMLA are gone, you don’t have to worry about the FMLA anymore. Whew. The leave already taken, including FMLA, still counts toward undue hardship, too. Whew again.

Essential Functions

Ninth Right: You don’t have to put essential functions in a written job description. Commissioner Feldblum said that would not be “fatal”. But nice to have. I think the actual functions of the job probably will count more than what you wrote down anyway.

The Tenth Right: You determine which functions of the position are essential. WARNING: However, any functions that are marginal may have to be accommodated by removing them from the employee’s job altogether.

That’s it. They’re kind of wimpy, but they’re the best rights you got. Sing! “On the first day of Christmas, the EEOC gave to me.. .”