October 2000 HR E-bulletin

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New Materials

EEOC Releases New Policy Guidance on Proceedures for Processing Reasonable Accommodation Requests
EEOC Releases Guidance On Discrimination In Employee Benefits
EEOC On Recordkeeping Under the ADA
EEOC Policy Letter on On Reinstating Employees After Returning from "Reasonable Accommodation Leave"

EEOC Releases New Policy Guidance on Proceedures for Processing Reasonable Accommodation Requests

On October 20 the U.S. Equal Employment Opportunity Commission (EEOC) released a policy guidance implementing Executive Order 13164, which requires all federal employers to establish effective written procedures for processing requests for "reasonable accommodation" by employees and applicants with disabilities. Follow the links for:

1. Policy Guidance: EEOC Policy Guidance on Executive Order 13164: Establishing Procedures to Facilitate the Provision of Reasonable Accommodation. Link: http://www.eeoc.gov/docs/accommodation_procedures.html
2. Questions and Answers on Executive Order 13164 -Link: http://www.eeoc.gov/docs/qanda-accommodation_procedures.html

EEOC Releases Guidance On Discrimination In Employee Benefits

This material is a new section in the EEOC Compliance Manual on benefit discrimination claims under each of the laws enforced by the Commission, including the ADA. The guidance includes an explanation of how benefit plans should be scrutinized to make sure they do not violate the ADA. http://www.eeoc.gov/docs/benefits.html
Questions and Answers: Compliance Manual Section on Employee Benefits http://www.eeoc.gov/docs/qanda-benefits.html

EEOC On Recordkeeping Under the ADA

Under the ADA there is no general requirement that employers maintain certain records. But the EEOC states that it may impose recordkeeping requirements upon employers subject to Title VII and the ADA :

Sec. 1602.12 Records to be made or kept
The Commission has not adopted any requirement, generally applicable to employers, that records be made or kept. It reserves the right to impose recordkeeping requirements upon individual employers or groups of employers subject to its jurisdiction whenever, in its judgment, such records (a) are necessary for the effective operation of the EEO-1 reporting system or of any special or supplemental reporting system as described above; or (b) are further required to accomplish the purposes of Title VII or the ADA. Such record-keeping requirements will be adopted in accordance with the procedures referred to in Sec. 709(c) of Title VII, or Sec. 107 of the ADA, and otherwise prescribed by law. (Approved by the Office of Management and Budget under control number 3046-0007)

As a general rule, records should be kept for one year for employees that were terminated.

EEOC On Reinstating Employees

The following is excerpted from a policy letter issued by the EEOC (July 13, 1998) in response to a question about an employers obligation to reinstate an employee after returning from a leave taken as a reasonable accommodation. It was issued in July of 1998 by William J. White, Jr., Acting Director of Communications and Legislative Affairs.

It is not an official opinion of the EEOC.

"Must an employer reinstate an employee in her former position or place the employee in another position within the company after a two-year medical leave of absence?"

"An employer must reinstate an employee if the leave was taken as a reasonable accommodation, unless the employee is no longer able to perform the essential functions of the job even with reasonable accommodation or if the reinstatement would impose an undue hardship on the employer...
...if the employer can show that it would be too difficult or too expensive to hold the job open during the period of the employee's medical leave, the employer would not have to hold the job open. However, the employer would have to reassign the employee to a vacant position which the employee could perform with or without reasonable accommodation. The reassignment would have to be equal in pay and status to the employee's prior position, unless such an assignment is not available. If this is the case, the employer may reassign the employee to a position of lower pay and status that is as close as possible to the previous position.
A reassigned employee may be paid the salary and benefits for the lower paying position unless the employer pays non-disabled employees who have been transferred to lower paying positions the salary and benefits that they received in their previous positions. However, an employer is not required to promote an employee or create a new position in order to reassign an employee.
Title I of the ADA prohibits discrimination only against "qualified individuals with disabilities." The ADA defines "disability" as a physical or mental impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. A qualified individual with a disability is an individual with a disability who satisfies the education, skill, experience, or other job-related requirements of a position that such individual holds or desires, and who can perform the "essential functions" of the position with or without a "reasonable accommodation."
The determination of whether an individual has a disability within the meaning of the ADA must be made on a case-by-case basis. An individual who claims to have an actual disability, as opposed to a record of a disability or perceived disability, must first show that he or she has an impairment (or disorder).
They must also demonstrate, however, that these impairments substantially limit one or more major life activities, that is, that she is unable to perform or is significantly restricted in the condition, manner, or duration under which she can perform a major life activity.
Major life activities include, but are not limited to, such basic activities as caring for oneself, performing manual tasks, walking, seeing, hearing, breathing, speaking, learning, and working. The EEOC has also said that activities such as sitting, standing, lifting, and reaching are major life activities...
If she has disability, then she is entitled to reasonable accommodation for the known physical limitations it imposes.
Reasonable accommodations are changes to the workplace or in the way things are customarily done that provide equal employment opportunities for qualified individuals with disabilities. An employer is required to allow an employee to use accrued paid leave and, if necessary, additional unpaid leave, up to the point at which granting the leave would result in "undue hardship" (i.e., significant difficulty or expense) to the employer.
An employer must reinstate an employee who has taken leave as a reasonable accommodation in his or her job, unless the employee can no longer perform the essential functions of the position, even with reasonable accommodation, or reinstatement would result in undue hardship. If, for example, an employer could demonstrate that it would be too difficult or too expensive to hold open an employee's job during a period of leave granted as a reasonable accommodation, then the employer would not have to return the employee to his or her job.
Under such circumstances, however, an employer is required to reassign the employee to a vacant position which the employee could perform with or without reasonable accommodation. A position is vacant if it is available when the employee requests an accommodation, or if it will become vacant within a reasonable period of time thereafter. The position must be equal in terms of pay and status to the employee's previous position, unless no such position is available, in which case the reassignment may be to a position of lower pay and status that is as close as possible to the employee's previous position. An employer may pay an employee who is reassigned to a lower paying position the salary and benefits for that position, unless the employer pays non-disabled employees who transfer into lower paying positions their previous salary and benefits. Reassignment does not require an employer to offer a promotion to an employee with a disability, though, of course, the employee may compete for a promotion that is a promotion to the same extent as other employees. An employer need hot create a new position as part of its reassignment obligation, but it must work with an employee to identify vacant positions for which the employee may be qualified.
So if the employee was on leave as an accommodation for a disability, then her employer must return her to that position. If she could not perform the position because of a disability, even with reasonable accommodation, or if it would have been too difficult or expensive for her employer to have held the position open, then her employer must consider whether she could be reassigned to it vacant position within the company as described above.

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.

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