TIPS: Technical Information Perspectives and Solutions— June 2008 EMPLOYMENT: REASONABLE ACCOMMODATION BEST PRACTICES Copyright © 2008 The DBTAC: Southeast ADA Center (Southeast DBTAC) publishes a variety of TIPS intended to provide accurate information on issues and concerns related to the Americans with Disabilities Act (ADA) for information specialists, advocates, business owners, government agencies, managers, and the general public. The examples used in this TIPS are based on actual questions received by the Southeast DBTAC and EEOC guidance, and are designed to strengthen the capacity of those who provide information and technical assistance to help others achieve effective compliance with the ADA. This TIPS reflects the best professional judgment of the Southeast DBTAC staff and its regional affiliate network. If you have questions or suggestions about how to improve TIPS, please contact the Southeast DBTAC by sending an email to sedbtacproject@law.syr.edu. Copyright Permission For copyright permission, email the Southeast DBTAC at sedbtacproject@law.syr.edu. Organizations may reproduce this fact sheet for non-commercial use provided they acknowledge the Southeast DBTAC as the copyright owner and include the following credit statement: “Reprinted from the DBTAC: Southeast ADA Resource Center website at www.sedbtac.org.” Question: Can a person with a disability be put on leave while the employer is researching the accommodation? Response: Employers must be very careful not to delay reasonable accommodation requests unnecessarily. If a reasonable accommodation option is not immediately available or must be researched, it is very important to continue a dialogue with the employee with a disability to ensure that he/she can continue in his/her job. An employer should consider all available options before an employee is put on leave. The Equal Employment Opportunity Commission (EEOC) Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (www.eeoc.gov/policy/docs/accommodation.html) provides guidelines to employers on a number of issues relating to requests for reasonable accommodations. This TIPS sheet draws from the most pertinent guidance and best practices provided by the EEOC. * Employers should respond “expeditiously” to requests for reasonable accommodations. Similarly, employers and individuals with disabilities should engage in the interactive process, if necessary, as quickly as possible. * Unnecessary delays violate the ADA. “In determining whether there has been an unnecessary delay in responding to a request for reasonable accommodation, relevant factors . . . include: (1) the reason(s) for the delay, (2) the length of the delay, (3) how much the individual with a disability and the employer each contributed to the delay, (4) what the employer was doing during the delay, and (5) whether the required accommodation was simple or complex to provide.” (EEOC, Enforcement Guidance, footnote 38). * The following EEOC examples illustrate an effective request for accommodations process: “Example A: An employer provides parking for all employees. An employee who uses a wheelchair requests from his supervisor an accessible parking space, explaining that the spaces are so narrow that there is insufficient room for his van to extend the ramp that allows him to get in and out. The supervisor does not act on the request and does not forward it to someone with authority to respond. The employee makes a second request to the supervisor. Yet, two months after the initial request, nothing has been done. Although the supervisor never definitively denies the request, the lack of action under these circumstances amounts to a denial, and thus violates the ADA. Example B: An employee who is blind requests adaptive equipment for her computer as a reasonable accommodation. The employer must order this equipment and is informed that it will take three months to receive delivery. No other company sells the adaptive equipment the employee needs. The employer notifies the employee of the results of its investigation and that it has ordered the equipment. Although it will take three months to receive the equipment, the employer has moved as quickly as it can to obtain it and thus there is no ADA violation resulting from the delay. The employer and employee should determine what can be done so that the employee can perform his/her job as effectively as possible while waiting for the equipment.” (EEOC, Enforcement Guidance, no. 10) Note that the EEOC emphasizes in example B the need for both the employer and employee to determine what can be done so that the employee can perform his or her job as effectively as possible while waiting for the accommodation. This highlights the need for the employer and employee to continue the “interactive process”. The EEOC’s internal reasonable accommodation policy, Procedures for Providing Reasonable Accommodation for Individuals with Disabilities (www.eeoc.gov/policy/docs/accommodation_procedures_eeoc.html) addresses time frames for processing requests, providing reasonable accommodations, and steps to take if an accommodation cannot be provided in a timely manner. The following information and example is provided: “If there is a delay in providing an accommodation which has been approved, the decision maker must investigate whether temporary measures can be taken to assist the employee. This could include providing the requested accommodation on a temporary basis or providing a less effective form of accommodation. In addition, the decision maker may provide measures that are not reasonable accommodations within the meaning of the law (e.g., temporary removal of an essential function) if: (1) they do not interfere with the operations of the Agency; and (2) the employee is clearly informed that they are being provided only on a temporary, interim basis.” “For example, there may be a delay in receiving adaptive equipment for an employee with a vision disability. During the delay, the supervisor might arrange for other employees to act as readers. This temporary measure may not be as effective as the adaptive equipment, but it will allow the employee to perform as much of the job as possible until the equipment arrives.” (EEOC Procedures, part VIII.D) Resources: DBTAC: National Network of ADA Centers 1-800-949-4232 (voice/TTY) Website: www.adata.org State Assistive Technology Program www.resna.org/taproject/at/statecontacts.html Job Accommodation Network (JAN) 800-526-7234 (V) 877-781-9403 (TTY) Website: www.jan.wvu.edu U.S. Equal Employment Opportunity Commission www.eeoc.gov DISCLAIMER: The DBTAC-Southeast ADA Center (Southeast DBTAC) is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the Americans with Disabilities Act (ADA) under Grant # H133A060094. However, you should be aware that NIDRR is not responsible for enforcement of the ADA. For more information or assistance, please contact the Southeast DBTAC via its web site at www.sedbtac.org or by calling or by calling 1-800-949-4232 (v/tty) [AL, FL, GA, KY, MS, NC, SC, TN] or 404-541-9001 (v/tty). The information, materials, and/or technical assistance are intended solely as informal guidance, and are neither a determination of your legal rights or responsibilities under the Act, nor binding on any agency with enforcement responsibility under the ADA. The Burton Blatt Institute at Syracuse University (BBI) does not warrant the accuracy of any information contained herein. Any links to non-BBI information are provided as a courtesy. They are not intended to nor do they constitute an endorsement by the BBI of the linked materials. DBTAC: Southeast ADA Center (Southeast DBTAC) 1419 Mayson Street, Atlanta, GA 30324 Phone: (404) 541-9001 (v/tty) or (800) 949-4232 (v/tty) Fax: (404) 541-9002 Email: sedbtacproject@syr.law.edu Web: www.sedbtac.org Funded by the National Institute on Disability and Rehabilitation Research of the U.S. Department of Education #H133A060094