EEOC Guidance on Reasonable Accommodation and Undue Hardship Under the ADA TIP October 1999

"Is an employer required to provide the reasonable accommodation that the individual wants? Does a cost-benefit analysis determine whether a reasonable accommodation will cause undue hardship?"

Questions like these continue to plague employers almost 10 years after the drafting of the Americans with Disabilities Act. If you find yourself confused about what is considered a "reasonable accommodation," you may want to obtain a copy of a document released earlier this year by the Equal Employment Opportunity Commission (EEOC). The EEOC released comprehensive guidance to the public to clarify the rights and responsibilities of employers and individuals with disabilities regarding reasonable accommodation and undue hardship. Title I of the Americans with Disabilities Act (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.

According to the guidance, "reasonable accommodations" may be categorized as:

(a) modifications or adjustments to a job application process; or

(b) modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed; or

(c) 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.

The EEOC guidance describes an employer's legal obligations regarding reasonable accommodation; however, an employer may choose to provide more than the law requires. Accommodations that an employer may have to provide may 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.

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. According to the EEOC guidance, "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, as assessed by the employer on a case-by-case basis.

True to form, the EEOC guidance on ADA is mostly interpreted through a question-and-answer format, with plenty of examples for employers to consider. The guidance discusses reasonable accommodations applicable to the hiring process, as well as accommodations related to employment and job performance. For instance, in response to "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?" The EEOC responds affirmatively that 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, the guidance emphasizes that an employer should assess the need for accommodations for the application process separately from those that may be needed to perform the job. This requirement has great implications for those involved in the selection and administration of employment tests during the hiring process.

The following ADA issues are also addressed in the guidance:

The responsibility of individuals with disabilities to request reasonable accommodation and the way an employer should respond to a request;
The circumstances under which employers may ask for documentation showing the need for reasonable accommodation;
Reasonable accommodations for job applicants;
Reasonable accommodations to provide access to employer-sponsored training programs, services, and social functions;
New information on many types of reasonable accommodations, including job restructuring, unpaid leave, part-time schedules, modified workplace policies and reassignment;
The relationship between the obligation to provide leave as a reasonable accommodation under the ADA and the requirements of the FMLA;
Changes that employers are not required to make to a job, such as lowering production standards or removing a primary job duty; and
Those instances in which employers may deny a request for a reasonable accommodation because it imposes an undue hardship.

A complete copy of the guidance, as well as a short fact sheet targeted to small employers, can be obtained from the EEOC web site at http://www.eeoc.gov/ and is referenced as: U.S. Equal Employment Opportunity Commission (1999). Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act. Washington, DC: Author.

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