Procedural Accommodations: Efficiently Handling Employer Obligations

The ADA and other legislation – both states as well as federal -- often require “reasonable accommodations” in a multiplicity of settings.  How do you accommodate?  Who decides? And what constitutes “reasonable?”  In this webinar Jim Hughes and Paul Oliver survey the legal landscape and offer practical guidance on the scope and range of accommodations that an HR manager needs to keep in mind.

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Webinar Transcription

Paul Oliver (00:00):
My name is Paul Oliver, and with me is Jim Hughes. We both are with oneill and Lawson, and have been with Wier Lawson for over 20 years. Long time, longer. <Laugh>. I know I, I mu much longer actually, but here we are going to be presenting to you today on reasonable accommodations. Reasonable accommodations are specifically provided with respect to at least three federal statutes and as those statutes that we will be talking about today. The first is the Americans with Disabilities Act which requires reasonable accommodations. It was actually the second, well, actually, the second that really it required the reasonable accommodations. It was passed in 1990 and became effective in 1992, and specifically provides with respect to reasonable accommodations. The Pregnant Workers' Fairness Act we will also talk about, but it is the most recent.

Paul Oliver (01:15):
It was only passed last year, June 27th, 1923 in 19 2023. And the E EEO EOC just passed its guidance about a month or two ago with respect to that. The third is the religious beliefs and practices, which is under Title vii. Of course, title VI was the first that religious dis pro provided discrimination relief or discrimination on basis of religion. However, when it was initially passed in 19 64 did not specifically provide for reasonable accommodations, but it was amended in 1972 to add reasonable accommodations. And subsequent to that, there have been Supreme Court decisions, which we will later talk about, which define reasonable accommodations and what should be done in connection with that that particular statute. I'll begin with talking about Americans with Disabilities Act and Jim Hughes will follow talking about the Pregnant Workers' Fairness Act and the religious belief and practices under Title vii.

Paul Oliver (02:28):
With respect to the subject matter I'll start out by, we have a, a a a A screen giving you some of the, the issues that we will be highlighting, and the initial one is what types of employers are required to provide reasonable accommodations? The, the ACT itself specifically provides for reasonable accommodation and how it is supposed to be dealt with under the statute. Employer. The employer is it applies to employers who have 15 or more employees, and they are required to provide reasonable accommodations. Some states require employers to have fewer employees, so there might be some state statutes which are applicable to you. Specifically the statute provides with respect to in the a DA, that No Covered entity, which is your employer that we're talking about, shall discriminate against a qualified individual on the basis of disability in regard to job application, procedures, the hiring, advancement or discharge of employees, employee compensation, job training of other terms and conditions and privileges of employment. It then goes on to describe

Paul Oliver (04:42):
What an individual that it, that the statute provides. It will not against discriminating against a qualified individual on the basis of disability, and then describes what a qualified individual is. A qualified individual means an individual who with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires For the purposes of this sub-chapter, consideration shall be given to the employer's judgment as to what functions of a job are essential. And if an employee has prepared a written description before advertising or interviewing applicants for a job, this description shall be considered evidence of the essential functions of the job.

Paul Oliver (05:41):
It is also specifically provides with respect to accommodations that the term discriminate against a qualified individual on the basis of disability includes not making reasonable accommodations to the known physical or mental limitations of an, of an otherwise qualified individual with a disability who is an applicant or employee. Unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business or other such covered entity. The things that I read are already specifically covered in the statute. And again, the statute specifically defines the term undue hardship means an action requiring significant difficulty or expense when considered in light of the factors set forth in subparagraph B, and they set forth for considerations in connection with that in determining whether an accommodation would impose an undue hardship on a covered entity. Factors to to be considered include, again in the nature in the nature and cost of the accommodation needed.

Paul Oliver (07:03):
Under this chapter, the, in the overall financial resources of the facility are facilities involved in the provision of the reasonable accommodation, the number of per persons employed at such facility, the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of a facility. Three, the overall financial resources of the covered entity, the overall size of the business of a covered on, of a covered entity with respect to the number of employees, the number type and location of the facilities in the type of operation or operations of a covered en entity, including the composition, structure and functions of a workforce of such entity, the geographic, separateness, administrative or fiscal re, re relationship of a facility or facilities in question to the covered entity.

Paul Oliver (08:00):
Thus as you can see, the statute itself is very explicit about defining what accommodation, how the accommodation should be dealt with, and what an undue hardship is, which will prevent that, which would allow you to either have, require you to have that accommodation or not. What is a reasonable accommodation? A reasonable accommodation is any change to the application or hiring process to the job, to the way the job is done, or to the work environment that allows an individual with a disability who's qualified to do the job, to perform the essential functions of that job and enjoy equal opportunity. Employment opportunities accommodations are considered reasonable if they do not create an undue hardship.

Paul Oliver (09:00):
What then is an undue hardship as it has been described in the statute? The only statutory limitation on an employer's obligation to provide reasonable accommodation is that no such change or modification is required if it would cause undue hardship to the employer. And as we have, as I just read from the statute, undue hardship means significant difficulty or expense and focuses on the resources and circumstances of the employer in relationship to the cost or difficulty of providing a specific accommodation. This is, is a very serious and, and, and task with respect to undue hardship. And it's often very difficult to to most requests. Many requests will come in because of, of, in order not to have to do it, you have to make sure there's a significant difficulty or expense, and that's the analysis that would go into it. Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, or disruptive are those that would fundamentally alter the nature or operation of the business. An employee must assess on a case by case basis whether a particular reasonable accommodation would cause undue hardship.

Paul Oliver (10:32):
The ADAS undue hardship standard is different from the UE hardship standard adopted by the Supreme Court for religious accommodation, but it is unclear how much of the gap continues to exist between the two. Jim will talk about that standard later, but as we just said here, the standard here is that in undue hardship means significantly difficult or difficulty or expense and focuses on the resources and circumstances of the company. With respect to the the religious accommodation standard, it is a, a substantial re difficulty. Whether that's different, how different it is, it's not altogether clear, I think, but they both are substantial requirements with respect to that.

Paul Oliver (11:33):
A determination of undue hardship should be based on several factors, including the nature and cost of accommodation needed. Again, these are mostly taken from the definition that I read to you earlier. The overall financial resources of the comp of the facility, making the reasonable accommodation, the number of persons employed in the facility, the effect on the expenses and resources of the facility the overall financial resources, the type of operation of the employer, including the structure and functions of the workplace, the impact of the accommodation on the operation of the facility, the availability of funding from third party parties, including tax credits to provide con accommodation. Thus, there are many factors that go into trying to decide whether or not the accommodation that is being considered is required because, because it does not create an undue hardship on the employee.

Paul Oliver (12:40):
Some examples that are, are, that are clear from reason about what are reasonable accommodations are some of the the following providing alternative formats. For example, a supervisor gives feedback in writing rather than verbally. For an employee who communicates better through written materials, that would be a reasonable accommodation. Accessible parking, for example, an employer changes the practice of only offering parking to upper management to allow an employee who is unable to walk along long distances, access to a reserved parking spot closer to the building service. Animals are a an often used one, an employer who reasonably changes their office's, no animal's policy in order to welcome an in order to welcome an employee's service, animal equipment change, an employer purchases software that magnifies the computer screen to allow an employee with low vision to correctly enter and read information on a computer reorganization of the job, the employer provides a checklist to ensure task completion.

Paul Oliver (14:03):
For an employee who has an intellectual disability, reassignment, reassignment is, is the reasonable accommodation. In some circumstances, an employer may reassign an employee to an open position if the employee can no longer perform the essential functions of the current position. The employer does not have to create a new position, no other employees need to be transferred or terminated in order to make a position vacant for the purpose of a reassignment, and the individual with a disability should be qualified for the new position. So these are all considerations with respect to reasonable accommodations, but these are often ones that companies, particularly larger companies, have to make the actual process of considering a reasonable accommodation.

Paul Oliver (15:06):
How must an individual request a reasonable accommodation? There is no specific manner in which it can be done. When an individual decides to request an accommodation, that individual must let the employer know that she needs, he or she needs an adjustment or change of work or reason related to a medical condition. Once that is communicated, the employers then on notice that there is an issue regarding accommodation. The individual can request this in plain English or in the words of the, of just a, a regular person, and they don't have to say it's under the a DA or say that I'm asking for an accommodation. But if they make it clear that because of a medical condition they are limited in performing a job function, then you are on notice that they're asking for an accommodation, and the analysis is should should be used. Use.

Paul Oliver (16:17):
May someone other than the individual with a disability request a reasonable accommodation on behalf of the individual. The answer is yes. A family member, a friend, a health professional or other representative may request a reasonable accommodation on behalf of an individual with a disability. Once that's made, of course, then the company must consider it. Now, the ultimate question of of of whether that person accepts the accommodation or not or decides whether it's needed, is with the individual. Even if another person is the one has requested it, do request for reasonable accommodation need to be in writing? No, there is no formal, there's no formality required with respect to that request for reasonable accommodation. Do not need to be in writing. Individuals may request accommodations in conversation or may use other modes of communication. An employer may choose to write a memorandum or letter confirming the individual's request.

Paul Oliver (17:24):
In fact, it, it is of course recommended there be some record of what the request is and what the accommodation is so that that, so that, that is part of the record. Another way of doing it is the employer may ask the individual to fill out a form to submit the request in a written form, but the employer cannot ignore initial oral requests just because he's asked them to put it in writing. Also, an employer also may request reasonable documentation that the individual has an a DA disability and needs a reasonable accommodation. So reasonable documentation once the request is made, is allowed.

Paul Oliver (18:13):
When should an individual with a disability request a reasonable accommodation? An individual with a disability may request a reasonable accommodation at any time during the application process or during the period of the employment. The a DA does not preclude an employee with a disability from requesting a reasonable accommodation because he or she did not use, did not ask for one when applying for the job or after receiving the job offered. Plus, if the employer employee is hired and is on the job, they don't waive the right to RA to raise the issue of a disability and an accommodation because they didn't do it earlier. The individual with a disability should request that. Of course, when she know when he or she knows there is a workplace barrier that is preventing him or her due to a disability from effectively competing for a position, forming a job, or gaining equal access to the benefit of employer employ or employment, excuse me, once a request is made, what must an employer do?

Paul Oliver (19:33):
With re respect to receiving the request for accommodation? The employer, usually the process is once called a interactive process. The employer and the individual with a disability should engage in an informal process to clarify what the individual needs and identify the appropriate, reasonable accommodation. The employer may ask the individual relevant questions that will enable it to make an informed decision about the appropriate, reasonable accommodation and also what the individual needs. This includes asking what type of reasonable accommodation is needed. In other words, you can ask the employee what he or she believes is needed in order to be able to do the job. And then that what should invite the discussion that goes on.

Paul Oliver (20:38):
May an employer ask an individual for documentation when the individual requests reasonable accommodation? Yes. When the disability and or the need for accommodation is not obvious, the employer may ask the individual for reasonable document documentation about his or her disability and functional limitations. The employer is entitled to know that the individual has a covered disability for what she needs. He or she needs a reasonable accommodation. Reasonable documentation means that the employer may require only the documentation that is needed to establish that a person has an a DA disability, and that the disability necessitates a reasonable accommodation.

Paul Oliver (21:32):
May an indi an employer require an individual to go to a healthcare professional of the employers rather than employee's choice for the purpose of documenting need for accommodation and disability. The a DA does not prevent an employer from requiring an individual to go to an appropriate health professional of the employer's choice. If the individual provides insufficient information from his or her treating physician or other healthcare professional to substantiate that she, he or she has an a DA disability and needs a reasonable accommodation, what that obviously means, that is, if the employee provides their own medical information and it is sufficient, then you are not then to ask for further information would not be, would be allowed or required.

Paul Oliver (22:34):
Are there situations in which an employer cannot ask for documentation in response to a request for reasonable in response to a request for reasonable accommodation? Yes. And again, that's sort of just what I was talking about. An employer cannot ask for documentation when both the disability and the need for reasonable accommodations are obvious 'cause that's basically harassment the individual or the second situation where the individual has already provided the employer with sufficient information to substantiate the claim and, and why he, he or she needs the reasonable accommodation accommodation and those circumstances where it is provided sufficiently by the employee, then it would be over the top for the employer to go further.

Paul Oliver (23:35):
You might want to know then if an employer's, whether an employer's required to provide the reasonable accommodation that the employee wants, not necessarily the employer may choose among reasonable accommodations as long as the chosen accommodation is effective. Thus, as a part of the interactive process, the employer may offer alternative suggestions for reasonable accommodations and discuss their effectiveness in removing the workplace barrier that is impeding the individual with a disability. If there are two possible reasonable accommodations and one costs more or is more burdensome than the other, the employer may choose the least expensive or burdensome accommodation as long as it is effective, meaning it would remove a workplace barrier, thereby providing the individual with an equal opportunity to participate.

Paul Oliver (24:43):
How quickly must an employer respond to a request reasonable accommodation Pretty quickly. That's not something you want to sit down on and not act on. If the employer and the individual with a disability need to engage in an interactive process, that also should be done quickly. Similarly, if the employee should act promptly to provide, the employer should act promptly to provide the accommodation. Unnecessary delays could result in a violation of the a DA, an employer. May an employer require an individual with a disability to accept a reasonable accommodation that he or she does not want the answer to that is no. An employer may not require a qualified individual with a disability to accept an accommodation, but if the employee needs a reasonable accommodation to perform an a central function or eliminate a direct threat and refuses to accept an effective accommodation, that individual or employee probably would be considered not to be qualified to remain in the job. So you can't force it, but you gotta make it available to that person in order to live up to your responsibility as an employer.

Paul Oliver (26:11):
Is an employer relieved of its obligation to provide reasonable accommodation for an employee with a disability who fails to take medication to obtain medical treatment or to use an assistive device such as a hearing aid? No. The a DA requires an employer to provide reasonable accommodation to remove both workplace barriers regardless of what effect medication, other medical treatment, or assistive devices may have on an employee's ability to perform the job. However, if an employee with a disability, with or without reasonable accommodation cannot perform the centric functions of the position or poses a direct threat in the absence of medication treatment or an assisted device, then the employee is unqualified. These are some of the basic tenants that you have to go through in deciding reasonable accommodation and whether the reasonable accommodation must be given because it is, does not provide undue burden on the employer. Jim will now move on to the, the newest act, the Pregnant Workers' Fairness Act.

James L. Hughes (27:32):
Thank you, Paul. The Pregnant Workers' Fairness Act is a new law that requires covered employers to provide reasonable accommodations to workers' known limitations relating to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship. This act applies only to accommodations, existing laws that the EEOC enforces make it illegal to fire or otherwise discriminate against workers because of pregnancy, childbirth, or related medical conditions. The ACT does not replace federal, state, or local laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions. More than 30 states and cities have laws that provide accommodations for pregnant workers. For example, I noticed yesterday that Tennessee, California New York City have laws that provide accommodations for pre pregnant workers.

James L. Hughes (28:49):
The ACT requires accommodations even if the a DA does not apply to the employee. The ACT also requires accommodations, even if the employee is not eligible for Family and Medical Leave Act benefits. The ACT protects qualified employees of covered employers who have known conditions related to pregnancy, childbirth, or related medical conditions. A qualified employee means an employee or applicant who without, with, or without reasonable accommodation, can perform the essential functions of the employment position, except that an employee or applicant shall be considered qualified. If, if any inability to perform an essential function is for a temporary period, the essential function could be performed in the near future, and the inability to perform the essential function can re be reasonably accommodated. Now, for purposes of the ACT covered, employers include public and private sector employers with at least 15 employees, Congress, federal agencies, employment agencies, and labor organizations.

James L. Hughes (30:16):
Reasonable accommodation has the same meaning given that term in the a DA, including with regard to the interactive process that will typically be used to determine an appropriate reasonable accommodation. Undue hardship means significant difficulty or expense, and focuses on the resources and circumstances of the employer in the relationship to the cost or difficulty of providing a specific accommodation. Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business. An employer looks at reasonable accommodations on a case by case basis in determining whether a, a particular accommodation would cause an undue hardship. Now, this act has went into effect June 27th of last year, and the EEOC published regulations in April that go into effect June 18 of this year. Our next webinar on the first Friday in July, will be about the Pregnant Workers' Fairness Act and the attorneys presenting that webinar will go into detail about what the regulations provide reasonable accommodations for purposes of this act, changes to the work environment or the way the work is usually done.

James L. Hughes (32:06):
The house committee that proposed this act provided several examples of reasonable accommodations, including the ability to sit or drink water, to receive closer parking, have flexible hours, receive appropriate size, uniforms and safety apparel, receive additional break time to use the bathroom, eat and rest to take, leave or time off to recover from childbirth and to be excused from strenuous activities and or activities that involve exposure to compounds not safe. For pregnancy, the ACT prohibits covered employers from requiring an employee to accept an accommodation without a discussion about the accommodation between the worker and the employer. The ACT prohibits denying a job or other employment opportunities to a qualified employee or applicant based on the person's need for a reasonable accommodation.

James L. Hughes (33:10):
The ACT prohibits requiring an employee to take leave if another accommodation could be provided that would let the employee keep working. The ACT prohibits retaliating against an employee for reporting or opposing unlawful discrimination, and the ACT prohibits interfering with any individual's rights under the act like with the a DA. When a person makes known that they need an accommodation because of pregnancy, childbirth, or related medical conditions, the employer should document the request, discuss the request with the employee to determine what job duties are affected, and to document the results the employer should discuss with the employee. What accommodations will allow the employee to perform the job and document the results. Then after an acco effective accommodation is selected, the employer should follow up to make sure that the accommodation is actually accomplishing what needs to be accomplished.

James L. Hughes (34:32):
One interesting case since the law was passed last year came up in the state of Texas when Congress passed the Pregnant Workers' Fairness Act, they passed it as part of the Consolidated Appropriations Act of 2023. Congress and particularly the House representatives did not have a quorum physically present when the House passed the act. The Attorney General for the state of Texas made this point with the Northern District of Texas, and the Northern District of Texas Court agreed that because there was no quorum physically present when the act was passed, the law was not effective. The federal government is appealing the decision, but this fact allows private employers to argue if they need to that they have a defense to any claim under the Pregnant Workers' Fairness Act. Now, the decision of the Northern District of Texas applies only to Texas State employees and not to private employers or other public employers, but it is something to keep in the quiver if someone raises a claim under the Pregnant Workers' Fairness Act.

James L. Hughes (36:11):
Now let's talk about religious beliefs and practices and accommodations for those beliefs. Like with Title vii employers with 15 or more employees are required to provide accommodations for a person's religious beliefs and practices. However, an employer does not have to accommodate a religious belief or practice if that would impose an undue hardship. And a religious practice can be sincerely held by the individual, even if newly adopted or not consistently observed or different from the commonly followed tenets of the individual's religion. The definition of religion under Title VII is quite broad. It includes all the recognized organized religions and even some new or uncommon forms of religion, even if held only by a small number of people. Now, some practices are religious for one person but not religious for another person, such as not working on a Saturday or a Sunday. One person may not work on a Saturday for religious reasons, but another person may not work on Saturday for family reasons. Under Title VII of Practice is religious if the employee's reason for the practice is religious and not personal, social, political or economic philosophies or personal preferences are not religious beliefs. Under Title vii, some common religious accommodations include allowing people to wear certain garb that is consistent with their religious practices. And the EEOC has developed a technical assistance document called religious garb and grooming in the workplace rights and responsibilities that you can use and explaining issues about religious accommodation to your employees.

James L. Hughes (38:27):
An accommodation may include a Catholic employee meeting a schedule change to attend services on Good Friday or a pharmacy employee being excused from filling birth control prescriptions or things of that nature. What does UE hardship mean? In the past, undue hardship meant more than a minimal burden on the operation of the business. And in the past, examples of undue hardship included violating a seniority system, causing a lack of necessary staffing, jeopardizing security or health, or costing the employer more than a minimum amount. If a schedule change would impose an undue hardship, the employer would allow coworkers to voluntarily substitute or swap shifts to accommodate an employee's religious belief or practice.

James L. Hughes (39:33):
An employee also could transfer to a vacant position, but infrequent over time was not considered an undue hardship. Last year, the Supreme Court in the case of GR versus DeJoy clarified that showing more than a de minimalist cost does not establish undue hardship under Title seven. Instead, the Supreme Court held that the undue hardship to be shown was a substantial burden in the overall context of an employer's business, taking into account all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact. In light of the nature, size and operating cost of an employer, the only thing that the Supreme Court said would still be an undue hardship is violating a seniority system, but the Supreme Court did not clarify what else remains an UE hardship, and it did not adopt the undue hardship standard applicable to the a DA.

James L. Hughes (40:52):
And like with the A DA and the Pregnant Workers' Fairness Act it is appropriate to document a request for a religious accommodation to and to determine what job duties would be affected by the accommodation. You also need to discuss with the employee what accommodations would allow the employee to engage in the religious belief or practice and document the results, and then determine whether any accommodations that allow the employee to engage in the belief or practice could create an undue hardship and then discuss an effective accommodation with the employee and follow up to make sure that effective accommodation still works. Now we have come to the conclusion of what we wanted to present today. We would like to offer a copy of the SAP pregnancy Accommodation Policy or a reasonable accommodation request form, and you can request that by sending an email to either Paul or me, and we would be glad. We thank you for your participation in this webinar and we hope you'll join our fellow attorneys for next month's webinar. Absolutely. We appreciate your presence.