By Philip Young

The Americans with Disabilities Act ("ADA") requires employers to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment so that they enjoy equal employment opportunities, unless such accommodation would cause the employer undue hardship. Employers frequently struggle with the concepts of "reasonable accommodation" and "undue hardship." These concepts are among the most frequently litigated ADA issues. Earlier this year, the Equal Employment Opportunity Commission ("EEOC") issued its own enforcement guidelines which set forth its current position on what constitutes "reasonable accommodation" and "undue hardship." Although the EEOC pronouncements do not have the force of law (and in some cases deviate from it), they are used by the EEOC during its investigations.

Reasonable Accommodation

The EEOC's recent pronouncement on reasonable accommodation includes the following positions:

1. Although an employer may ask an employee for reasonable documentation of his/her claimed disability in connection with a request for reasonable accommodation if the disability is not obvious, it may not ask for additional documentation if the employee has provided "sufficient" documentation;
2. An employer retains the discretion to decide the form of accommodation it will provide, so long as the accommodation selected is effective and reasonable;
3. Unpaid leave is a form of reasonable accommodation when necessitated by an employee's disability. Thus, an employer must hold an employee's job open for the period of leave, unless that accommodation would create an undue hardship. Even if undue hardship is shown under the circumstances, however, an employer must reassign the employee to a vacant equivalent position for the remaining period of leave, at the end of which time the employee would return to work in the new position;
4. An employer may have to hold an employee's job open even if there is no set date for the employee's return, unless it can demonstrate that to do so would cause an undue hardship;
5. An employer may be required to modify an employee's work schedule, change arrival or departure times, provide breaks, and/or alter when certain functions are performed, so long as the modifications would not constitute an undue hardship. An employer is required to permit an employee to work from home if the essential functions of the position can be performed at home and would not cause the employer undue hardship;
6. An employer may be required to reassign an disabled employee to a vacant position for which he or she is qualified, even if he or she is not the best qualified person for the position;
7. An employer need not excuse an employee's violation of a uniformly-applied conduct rule which is job related and consistent with business necessity even if the violation was caused by a disability;
8. An employer may not disclose to other employees the fact that the a disabled employee is receiving a reasonable accommodation or that the employee has a disability; and
9. An employer may not refuse to provide a reasonable accommodation even if it would violate a collective parting agreement.

Undue Hardship

The EEOC guide also provides that a determination of undue hardship should be based on the following factors:

1. The nature and cost of the accommodation needed;
2. The overall financial resources of the facility making the reasonable accommodation;
3. The number of persons employed at the facility making the reasonable accommodation;
4. The effect on expenses and resources of the facility;
5. The overall financial resources, size, number of employees and type and location of the facilities of the employer;
6. The type of operation of the employer, including the structure and function of the work force, the geographic separateness, and the administrative or physical relationship of the facility involved in making the accommodation to the employer; and
7. The impact of the accommodation of the operation of the facility.

Notably the EEOC specifically rejects a "cost-benefit" analysis for determining undue hardship, even though such an analysis has received some approval by the courts. The EEOC prefers that the undue hardship analysis depend upon the employer's resources, and not on the individual's salary, position or status.

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