July 1999

Workplace Labor Update - New ADA “Guidance” – July 1999

9 min

The Americans with Disabilities Act (ADA) requires an employer to provide a “qualified individual with a disability” a “reasonable accommodation” which enables the individual to perform the essential functions of the position. An employer is not required to provide the accommodation if doing so would impose an “undue hardship” on the employer. On March 1, 1999, nearly nine years after the passage of the ADA, the Equal Employment Opportunity Commission (EEOC) issued a document entitled “Enforcement Guidance: Reasonable Accomodation and Undue Hardship under the Americans with Disabilities Act” (the “Guidance”), which the EEOC claims is designed to “clarif[y]” the concepts of “reasonable accommodation” and “undue hardship.”

The Guidance attempts to expand the definition of reasonable accommodation beyond the boundaries set by the courts and attempts to limit instances in which an accommodation would constitute an undue hardship. In short, the EEOC has issued informal guidance which it will likely use in an attempt to expand the scope of the ADA beyond the current limits.

Attempted expansion of what constitutes a reasonable accommodation

The Guidance makes it clear that there are few, if any, changes to the workplace or the employee's duties which could not constitute a reasonable accommodation under the EEOC's interpretation. In the Guidance, the EEOC lists a wide variety of items that, in its view, constitute reasonable accommodations, including:

    · 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 not;
    · reassignment to a vacant position.
While this list is largely consistent with positions the EEOC has taken in the past, employers should be aware that many courts have construed the concept of reasonable accommodation more narrowly than the EEOC. For example, the EEOC acknowledges that some courts have held that reassignment to a vacant position is not required for someone not qualified to perform the essential functions of their present position.

A. Requesting the Accommodation

While the Guidance attempts to expand the types of accommodations employers must provide in many respects, it does recognize some limits on an employee's right to accommodation under the ADA.

The EEOC admits that the employer must be made aware of the employee's need for an accommodation before there is any duty to provide the employee with a reasonable accommodation. However, under the Guidance, almost any request by an employee related to a medical condition is considered sufficient to put the employer on notice of the possibility that the employee requires a reasonable accommodation under the ADA. For example, if an employee informs her supervisor that she needs six weeks off for a back problem, the employee has made a request for a reasonable accommodation under the ADA according to the EEOC. The Guidance acknowledges that the employer may not have a duty under the ADA1 to provide the leave to the requesting employee, but states that any request from an employee which ties a request for an accommodation to a medical condition constitutes a request for a reasonable accommodation under the ADA. Such a request triggers the employer's duty to engage in “an informal interactive process.” The informal interactive process must “clarify what the individual needs and identify the appropriate reasonable accommodation.”

The regulations acknowledge that the employer need not simply accept the employee's allegations that he or she has a disability. It is important for employers to remember that the ADA only covers individuals with disabilities – temporary medical conditions such as the flu and broken bones are not disabilities. Numerous courts have found even more severe limitations, such as an inability to lift more than twenty-five pounds, do not constitute a disability. If the employee is not disabled, the employer has no duty to provide the employee with a reasonable accommodation.

Accordingly, once the employee has raised the issue, the employer is allowed to make inquiries into the employee's alleged disability and the need for accommodation. For example, the employer may require the employee to provide information regarding the impairment; the nature, severity, and duration of the impairment; the activity or activities that the impairment limits; and the extent to which the impairment limits the employee's major life activities. However, the employer may not request documentation of obvious impairments. If the employee refuses to provide the reasonable documentation requested, then the employee is not entitled to the accommodation.

Documentation is considered insufficient if it does not specify the existence of an ADA disability and explain the need for the reasonable accommodation. For example, a note from a physician which states that the employee has asthma and requires an air filter is insufficient documentation, because it does not provide any information regarding the severity of the condition and does not provide information as to what problem exists in the workplace that requires an air filter. In instances where the employee has provided insufficient documentation, the employer may not merely refuse to provide the accommodation because the documentation was insufficient—the employer must request that the employee provide the additional necessary documentation.

B. Types of Accommodations

1. Modification of Leave Policy

Questions have been raised as to the duty of an employer under the ADA to provide unpaid leave to an employee. The Guidance flatly prohibits a “no-fault” leave system under which employees are automatically terminated after they have been on leave for a certain period of time. Each request for leave as an accommodation must be individually evaluated.

In some respects, the ADA obligation may go above and beyond the employer's obligations under the FMLA. For example, the Guidance indicates that providing an employee with leave to receive training in the use of Braille or to assist in the training of a service animal such as a guide dog would constitute a reasonable accommodation under the ADA. The ADA Guidance mandates that an employer hold the employee's position open for the employee unless doing so would constitute an undue hardship. If holding the position open would constitute an undue hardship, the employer must consider whether it has a vacant comparable position open when the employee is ready to return to work. If an equivalent position is not open, the employer must look for a vacant position at a lower level for which the employee is qualified, with or without reasonable accommodation, and offer it to the employee if such a position is available.

It is important to recognize that the Guidance attempts to impose a potentially burdensome requirement that goes well beyond the requirements imposed by the FMLA. The FMLA requires that when an employee returns from leave, he or she must be placed in the same or an “equivalent position.” According to the ADA Guidance, the employer must restore the employee to his or her “original position,” unless doing so would constitute an undue hardship.

2. Modification of Attendance Policy

Contrary to numerous court decisions, the Guidance provides that attendance is not necessarily an “essential function” of a job. Modifying the employee's schedule and allowing the employee to work at home may both be reasonable accommodations. According to the EEOC an employer may require attendance only “if the time during which an essential function is performed is integral to its successful completion.” Unfortunately, the EEOC failed to address the significant problems that an employer can encounter in allowing an employee to work at home, including the need for teamwork, proper supervision of the employee, and the employer's duty under the occupational safety and health laws to provide a safe workplace.

3. Reassignment to a Vacant Position

In the Guidance, the EEOC says that under the ADA an employer must provide reassignment to a vacant position as a reasonable accommodation if the employee is unable to perform the essential functions of his or her current position. However, as acknowledged by the EEOC, some courts have taken the position that if an individual is unable to perform the essential functions of his or her current position, transfer to a vacant position is not a reasonable accommodation. Under the EEOC's interpretation, if the position is open and the employee is able to perform the essential functions of the position, the employee must be given the position. No one else may be considered for the position regardless of how well qualified they might be for the position.

4. Employer's Right To Select Among Reasonable Accommodations

The EEOC recognizes that in some instances there may be more than one possible accommodation for the employee. The Guidance provides that there is no duty on the employer to provide the accommodation the employee prefers. For example, if the employee with asthma provided the additional documentation necessary and requested a specific and very expensive air filter, but there was a less expensive air filter available that would provide the necessary air quality, the employer is under no obligation to purchase the more expensive item simply because the employee prefers the more expensive accommodation.

C. Undue Hardship

An employer need not provide an accommodation to an individual with a disability if the accommodation would place an undue hardship on the employer. Under the Guidance, a determination of undue hardship should be based on several factors, including:

    · the nature and cost of the accommodation needed;
    · the overall financial resources of the facility making the reasonable accommodation; the number of employees employed at this facility; the effect on expenses and resources of the facility;
    · the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity);
    · the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer; and
    · the impact of the accommodation on the operation of the facility.
In addition, an employer must look at whether funding for the accommodation is available from an outside source, such as a state agency, and at the availability of tax credits or deductions to offset the cost of the accommodation before making the determination that providing it would constitute an undue hardship. In addition, to the extent the cost of the item constitutes an undue hardship, the employer “should ask” the individual with a disability if he or she will pay the difference.

Contrary to numerous court decisions, the Guidance provides that an accommodation which is contrary to the terms of a collective bargaining agreement does not impose an undue hardship on the employer. Rather, the Guidance requires that the employer and the union negotiate “so that the employer may provide a reasonable accommodation, except if the proposed accommodation unduly burdens the expectations of the other workers.” The Guidance does not address whether the employer must provide additional benefits to the union in order to obtain an accommodation that is contrary to the terms of the collective bargaining agreement.


The EEOC has attempted to expand the scope of the ADA, at least as currently interpreted by the courts, through the guise of Guidance intended to clarify an employer's responsibilities under the ADA. Although the Guidance goes beyond what courts have required of employers, employers must still understand the duties imposed by the Guidance. Plaintiffs and the EEOC will view an employer's actions in light of the Guidance, and courts may look to the Guidance to evaluate whether an employer's actions violated the ADA.

The text of the EEOC's Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act is available on the internet at: www.eeoc.gov/docs/accommodation.html.

1 Even if there is no duty to provide such leave under the ADA, the employer may have a duty to provide such leave under the Family Medical Leave Act (FMLA).