Reasonable Accommodation and the Interactive Process
By Myra Creighton Partner, Fisher & Phillips LLP | March 10, 2013
The Americans with Disabilities Act ("ADA") prohibits employers from discriminating against disabled individuals, which includes failing to provide a reasonable accommodation to a disabled individual.
Before Congress passed the ADA Amendments Act ("ADAAA"), when an employee requested an accommodation, employers generally could determine whether the employee was disabled. Further, even if an employer entirely failed to accommodate an employee, there still was a good chance the employer would win any resulting lawsuit because of the difficulty in proving a disability. If it has not already, the passage of the ADAAA, which made it much easier to prove disability, should have entirely changed an employer's approach to accommodation requests.
Although the definition of an actual disability remained the same -- "an impairment that substantially limits a major life activity" -- the meaning of the words is much different. Major life activity now includes major bodily functions. Further, rather than defining the term "substantially limit," the EEOC issued "guidelines" that provide little if any guidance at all. Two key guidelines, however, significantly change the disability analysis. First, the term "disability" is to be broadly interpreted. Second, the positive effects of mitigating measures such as medication, physical therapy, assistive devices like prosthetic limbs, etc., may not be considered in analyzing whether an employee is disabled. Thus, for example, even if an individual's diabetes is fully controlled with insulin, the individual still is disabled because the diabetes substantially limits the function of the endocrine system. Consequently, the guidelines have achieved the result the EEOC ultimately desired – that an employer not focus on whether an employee is disabled. Indeed, without the ability to determine to any degree of certainty whether an employee actually is disabled, employers simply accommodate employees' impairments to avoid any legal risk. Therefore, it is critical for employers to understand how to determine essential functions of a job and to understand their accommodation obligations.
A "reasonable accommodation," is change in the work environment or in the way a job is customarily done that gives a disabled an individual equal employment opportunities." 29 C.F.R. §1630.2(o) app. Reasonable accommodations generally fall into three categories:
- Modifications or adjustments to the job application process that enable a qualified applicant with a disability to be considered for the position the applicant ¬desires;
- Modifications or adjustments to the work environment or to the way a position is customarily performed to enable a qualified disabled individual to perform the essential functions of the job;
- Modifications or adjustments that enable a covered entity's employee with a disability to enjoy the same benefits and privileges of employment as other employees, such as making the employee lunchroom accessible to an individual in a wheelchair.
Thus, reasonable accommodation is not limited to enabling an employee to perform essential job functions.
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