DBTAC
Southwest ADA Center

Call 1-800-949-4ADA
for Technical Assistance


Powered by Google

Get Adobe Reader for PDF files

Human Resource E-Bulletin - February 2000

Responsibilities of Employers and Employees in the "Reasonable Accommodation Process"   

In this edition:

Scenario

An office administrator named Fred comes to you and states that he just found out that he has a learning disability and would like an accommodation.   Fred was recently promoted.  The new job requires that he go through volumes of reports and compare facts and figures.  He noticed that he was having tremendous difficulties getting through these and became concerned and went to his doctor.  Fred told you that his doctor said that he had a learning disability, but thought there may be special software and other on-the-job accommodations that could help him perform his job successfully.  Fred did some research and presents you with a number of different accommodation possibilities.

Fred gives you the note from his doctor, which states Fred has a problem visually processing words and data and should be accommodated on the job.  You tell Fred that you need additional information about his diagnosis.  Unfortunately, Fred thinks that he has given you enough information and refuses to provide anything else.  At one point, Fred tells you that he may consider seeing a doctor of your choice if you will pay.

This situation presents a number of issues about the rights and responsibilities of the employer and the employee in the "reasonable accommodation process."  The above scenario is similar to the one the EEOC responded to in a policy letter* issued on December 14, 1998 (14 NDLR  135).  We'll use it to provide guidance on working with Fred. (EEOC disclaimer: This letter does not represent an official opinion of the EEOC.)

First: the General Rules

When an employee requests an accommodation, and the disability and need for the accommodation are not obvious, the employer may ask the individual for reasonable documentation about his/her disability and functional limitations.  Employers are entitled to know that the individual has a covered ADA disability that requires an accommodation.

The employer should allow, "the individual time to provide documentation that s/he may already have showing the existence of a covered ADA disability and the need for reasonable accommodation, or to obtain documentation, at his/her expense that show the existence of an ADA disability and the need for reasonable accommodation."

Responsibilities of Employers and Employees in the "Reasonable Accommodation Process:" Applied to This Scenario

Fred has the responsibility to provide "sufficient" documentation, which means he needs to provide enough information to show that he has an impairment that substantially limits a major life activity.  The note simply states that Fred has a problem visually processing words and data and should be accommodated on the job.  A statement that Fred has a problem visually processing words indicates the existence of an impairment, but without any information provided on the functional limitations it causes, one cannot discern whether it is substantially limiting and therefore a disability.  Without this information it is also difficult to understand what types of accommodations to which Fred may be entitled.  So additional documentation may be required to establish the existence of a disability and that the accommodation is linked to the disability.

At this point, you should explain why the documentation is insufficient and allow Fred an opportunity to provide the missing information in a timely manner. In this case, if Fred fails to provide the missing information you may ask him to see a doctor of your choosing.  If you decide to do this it would be at your expense. ("[i]f an employee seeking accommodation under the ADA fails to provide sufficient documentation of disability, an employer may require that the employee see a health care professional of the employer's choosing, at the employer's expense.)

Even if Fred refuses to provide documentation, you are not required to send him to a doctor of your choosing ("[a] n employer. is not required to send the employee to a health professional at its own expense if the employee fails to provide sufficient documentation of an ADA disability.")

In this scenario, Fred had a learning disability.  Issues that may surface from time to time, because of the nature of certain disabilities are the type of documentation that may be required to substantiate a certain type of disability and the expertise level of the health care professional who provides the diagnosis.  In the policy letter the EEOC provided specific guidance on exactly what information an employee may need to supply to establish the existence of a learning disability:

  •  "[s] ufficient documentation of a learning disability covered under the ADA should include a diagnosis of a specific learning disorder (e.g., as specified in the Diagnostic and Statistical Manual published by the American Psychiatric Association [currently the DSM-4], or the International Classification of Diseases).. [that shows] that the health professional who conducted the tests and made the diagnosis has expertise in learning disabilities, and should give some indication of how the diagnosis was reached (e.g., what tests were administered to determine a diagnosis)..[that includes] information about the major life activities affected by the learning disorder (e.g., reading, learning, concentrating, thinking)."

Reasonable Accommodation: Is working at home required?

Christine, a long-time employee, has recently developed complications from her diabetes.  Her doctor recommends that she be permitted to work at home two days per week so that she can maintain an eating and exercise schedule.  She works in your public relations department.  Is working at home a reasonable accommodation?

Working at home should be considered as an accommodation possibility.  This scenario reflects the facts of a case that the EEOC has brought against Lockheed Martin in California. As the EEOC stated in its guidance on reasonable accommodation,* issued last year, working at home may be an accommodation that must be provided in certain circumstances.  So, an employer may need to modify its policies and procedures to permit an individual to work at home as long as the arrangement is effective and would not cause an undue hardship.  The guidance lists items to be considered when determining accommodating an employee by letting him/her work at home.

  • Can the essential functions of the position be performed at home? There are certain jobs in which the essential functions can only be performed at the work site -- e.g., food server, cashier in a store.
  • Can the employee be adequately supervised at home?
  • Does the employee need to work with certain equipment or tools that cannot be replicated at home?

Considerations may also include the technology used in your workplace.

  • Does it allow employees to interact with their supervisors and others from distant sites?
  • Are other employees allowed to work at home from time to time for other reasons?


You should also review how your workplace policies and practices are being administered across the board.

In the Lockheed case, the employee was a longstanding employee with a good work record, so the employee's work history may also be a factor.

*Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (1999).  This publication is available by calling the DLRP at 800-949-4232.
 

Definition of Disability (Post Sutton and Abbott)

In the wake of the Supreme Court decisions in Abbott v. Bragdon and Sutton v. United Airlines there has been some confusion over exactly how these decisions impact the definition of disability under the ADA.  Most of the same considerations still apply.  Following is a short checklist of things you should look at in evaluating whether or not an employee has a disability.  Following that is a brief review of these key decisions that have refined the definition of disability.

Disability Evaluation Checklist:

  • Individualized determination must still be made to determine the full impact of the disability on the individual.
  • Evaluate employees as they are at that point in time.
  • Consider the full range of major life activities that may be impacted by a disability - don't just focus on working.
  • Evaluate functional limitations after factoring in the effect of mitigating measures.
  • Consider impairments that are not presently limiting in terms of how they substantially limit an individual's ability to pursue major life activities.
  • Even with mitigating measures people may still be substantially limited.
  • Mitigating measures may have side effects that substantially limit a person.
  • Taking medication cannot be a condition of employment.
  • If an individual is not presently substantially limited are they being perceived as having a substantially limiting disability, or
  • Does he/she have a record of a substantially limiting disability?

Review of Abbott and Sutton

Abbott v. Bragdon 524 U.S. 624 (1998)

In finding that HIV was a disability in Abbott v. Bragdon, the Court recognized that an individual does not have to manifest actual symptoms to be covered under the ADA.  So, with certain types of disabilities, such as HIV and hepatitis, an individual does not have to prove that they are presently functionally limited.  Sidney Abbott was covered because HIV substantially limited her ability to engage in the major life activity of procreation. Abbot would cover individuals who manifest no functional limitations but are substantially limited in their ability to pursue certain major life activities.  Abbott does not stand for the proposition that HIV is a disability per se; individuals must be prepared to point out the major life activities in which they are substantially limited.

Sutton v. United Airlines

In Sutton v United Airlines, the United States Supreme Court ruled that impairments should be evaluated in their corrected or "mitigated" state to determine whether they are disabilities under Title I of the Americans with Disabilities Act.

The Court ruled that every individual should be evaluated on an individualized basis, so there is no per se exclusion of certain types of disabilities. People using mitigating measures may still be substantially limited in major life activities.  In Sutton the functional limitation was completely corrected by the mitigating measure, glasses.  This is simply not the case for many persons with disabilities that use some type of mitigating measure.  The Court made note of the fact that the effect of some mitigating measures such as medication can, in and of themselves, cause substantial limitations on major life activities.

Review of Additional Decisions Regarding the Side Effects of Mitigating Measures

Taylor v. Phoenixville Sch. Dist., 16 NDLR 115, No. 98-1273, 184 F.3d 296, (3rd Cir. 1999).  On appeal, the court found that a principal's secretary with bipolar disorder was disabled under the ADA, because she was substantially limited in the major life activity of thinking.  The court relied upon the opinion of the secretary's treating physician, who indicated her symptoms were not completely controlled even while she was taking lithium.  Other sources corroborated the secretary's claim that she continued to experience uncontrolled, ongoing symptoms.

Franklin v. Consolidated Edison Co. of N.Y. 16 NDLR 181 SDNY 1999
Side effects of mitigating measures were considered for an attorney with epilepsy.  She was able to prove that she was substantially limited in the major life activities of working and sleeping.  The side effects of the medications caused mild sedation and insomnia.

Belk v. Southwestern Bell Telephone 16 NDLR 185 (8th Cir. 1999)
An employee with polio, who used a brace, was still substantially limited in the major life activity of walking because he was unable to function as well as others.

Instructions for Field Offices: Analyzing Americans with Disabilities Act Charges After Supreme Court Decisions Addressing "Disability" and "Qualified" from the EEOC also provides detailed instructions on evaluating disability in the wake of these decisions.   E-mail us at swdbtac@ilru.org or call us at 800-949-4232 if you are interested in receiving a copy of this guidance.

Resources

Reasonable Accommodations for People with Psychiatric Disabilities: An On-line Resource for Employers and Educators at http://www.bu.edu/sarpsych/reasaccom.

A service of the Center for Psychiatric Rehabilitation in Boston, this site provides practical information about reasonable accommodations in employment and in the post secondary arena for people who have psychiatric disabilities.
 

Visit the EEOC's Web site at http://www.eeoc.gov

Visit the job accommodation network at http://www.janweb.icdi.wvu.edu

Welcome to the Human Resource E-bulletin for employers, human resource professionals and others interested in learning more about how to successfully implement the employment provisions of the Americans with Disabilities Act in the workplace.  On a monthly basis, you will receive information on resources, updates on litigation, EEOC guidance and policy letters that will enhance your understanding of the employment provisions of the ADA.  DLRP staff and the Outreach Manager of the Houston District office of the Equal Employment Opportunity Commission facilitate the HR E-bulletin.

The mission of the DLRP is to promote proactive compliance with the ADA in Texas, Arkansas, Louisiana, New Mexico and Oklahoma.  Based at ILRU (Independent Living Research Utilization), a program of TIRR in Houston, Texas, the DLRP is funded by NIDRR, an agency of the Department of Education, under grant #H133D60012, to provide information, materials, and technical assistance on the ADA.  NIDRR is not an enforcement agency.

Project staff are also available at 800-949-4232 from 9:00a.m.–5:00p.m. Central Time to answer your ADA questions.  All questions are answered confidentially.

The information herein is intended solely as informal guidance and is neither a determination of your legal rights or responsibilities under the Act, nor binding on any agency with enforcement responsibility under the ADA.

To unsubscribe to the HR E-bulletin, or to subscribe to the general or legal E-bulletin, to ask a question or give a comment, please send an E-mail to swdbtac@ilru.org.  All questions are answered confidentially.

You are welcome to reproduce all or part of the text on this web page electronically or in print, crediting as your source the Southwest ADA Center at ILRU. We would greatly appreciate receiving a copy of your use of our material. Please send to:

Tajauna Dunning, Communications Director
Southwest ADA Center
2323 S. Shepherd #1000
Houston, Texas 77019
713-520-0232 (v/tty)
713-520-5785 (fax)
tdunning@ilru.org

 

 

 

 

 

 

 

 

 

Outside Links will Open Up in a New Window
contact us: DBTAC Southwest ADA Center
800-949-4232 or 713-520-0232 v/tty
© DBTAC Southwest ADA Center , All rights reserved