Reasonable Accommodation and the ADA: Employing a Rule Out Approach to Workplace Solutions

Introduction

This Enforcement Guidance aims to clarify the roles and responsibilities of both employers and individuals with disabilities concerning reasonable accommodation and undue hardship, as defined under Title I of the Americans with Disabilities Act (ADA). The ADA mandates that employers must provide reasonable accommodations to qualified individuals with disabilities—whether they are employees or job applicants—unless such accommodations pose an undue hardship to the business. This guidance is designed to elucidate the legal obligations of employers in providing reasonable accommodations, while also acknowledging that employers are permitted to exceed these legal minimums.

Central to this discussion is understanding what constitutes a “reasonable accommodation” and who qualifies for it. We will explore the process of requesting a reasonable accommodation, detailing the necessary form and content of such requests. Furthermore, we will address the employer’s prerogative to ask pertinent questions and seek relevant documentation once a request has been initiated.

This guidance extends to reasonable accommodations applicable during the hiring process, as well as those related to the benefits and privileges associated with employment. We will delve into various types of reasonable accommodations concerning job performance, including job restructuring, leave policies, modified or part-time schedules, adjustments to workplace policies, and reassignment strategies. We will also examine the intersection of the ADA with the Family and Medical Leave Act (FMLA), particularly as it pertains to leave and schedule modifications. In addressing reassignment, we will clarify who is entitled to this accommodation and the extent of an employer’s obligation to search for suitable vacant positions. Additionally, we will consider the relationship between reasonable accommodations and workplace conduct rules.

Finally, the concluding section of this guidance will address the concept of undue hardship, specifying the circumstances under which requests for schedule modifications and leave can be rightfully denied. In essence, this document provides a comprehensive overview, helping employers navigate the often complex landscape of disability accommodation, ensuring compliance, and fostering inclusive workplaces. A crucial aspect of this navigation is what we might term a “rule out” approach. This involves a systematic consideration and, where necessary, elimination of less suitable options before arriving at the most effective and reasonable accommodation—a process akin to a select diagnosis in ensuring the right workplace solution.

General Principles: Defining Reasonable Accommodation

At the heart of the Americans with Disabilities Act (ADA) lies the principle of reasonable accommodation. Title I of the ADA mandates that employers must provide reasonable accommodation to qualified individuals with disabilities, whether they are employees or applicants, unless such accommodation would impose an undue hardship. In broad terms, a reasonable accommodation is any modification or adjustment to the work environment or to the standard operating procedures that allows an individual with a disability to enjoy equal employment opportunities.

There are three primary categories of reasonable accommodations:

“(i) modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; or

(ii) modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or

(iii) modifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.”

The requirement to provide reasonable accommodation is a cornerstone of disability rights legislation. It recognizes that while many individuals with disabilities can perform jobs without any special adjustments, workplace barriers often prevent others from fully participating. These barriers can be physical, such as inaccessible facilities, or procedural, such as inflexible work schedules or rules about task performance. Reasonable accommodation serves to dismantle these barriers, ensuring inclusivity.

Reasonable accommodations are available to qualified applicants and employees with disabilities, regardless of their employment status (part-time, full-time, or probationary). Typically, it is the responsibility of the individual with a disability to inform the employer of their need for accommodation.

A wide range of accommodations can be considered, particularly those involving modifications to the work environment or adjustments to job performance methods and schedules. These can include:

• Ensuring existing facilities are accessible and usable.
• Job restructuring to reallocate non-essential tasks.
• Implementing part-time or modified work schedules.
• Acquiring or modifying equipment to assist in job functions.
• Adapting tests, training materials, or workplace policies.
• Providing auxiliary aids and services like qualified readers or interpreters.
• Reassigning an employee to a vacant position if their current role is no longer suitable due to disability.

An accommodation is considered “reasonable” if it is “reasonable on its face,” meaning it appears feasible and plausible in typical situations. It must also be effective in meeting the specific needs of the individual, enabling them to perform the essential functions of their job or to have equal access to employment opportunities and benefits.

Example A: An employee with a hearing disability needs to communicate with the public via telephone. A reasonable accommodation would be to provide a TTY device, allowing the employee to use a relay service to manage calls. This is a common, effective solution that enables the employee to perform their job duties effectively.

Example B: A cashier with lupus experiences fatigue, making it difficult to stand for long shifts. Providing a stool is a reasonable accommodation, as it is a simple, common-sense solution that removes the workplace barrier of mandatory standing, allowing the cashier to perform their job comfortably and effectively while seated.

Example C: A cleaning company rotates staff across different floors monthly. An employee with a psychiatric disability struggles with routine changes and finds floor rotations challenging. Reasonable accommodations could include allowing the employee to stay on a single floor, rotating every two months instead of monthly, or providing a transition period to adjust to new floor assignments. These are feasible and effective solutions to help the employee manage routine changes and perform their cleaning duties.

It’s important to note what does not constitute reasonable accommodation. Employers are not required to eliminate essential functions of a job, as these are fundamental duties. An individual unable to perform essential functions, even with accommodation, is not considered “qualified” under the ADA. Similarly, employers are not obligated to lower production standards that are uniformly applied to all employees, though they may need to provide reasonable accommodation to help an employee meet these standards. While not required, employers are permitted to eliminate non-essential functions or adjust production standards if they choose.

Furthermore, reasonable accommodation does not extend to personal use items needed both on and off the job, such as prosthetic limbs, wheelchairs, eyeglasses, or hearing aids, unless these are specifically designed or required for job-related needs rather than personal use. Similarly, personal amenities like hot pots or refrigerators are not required as accommodations if they are not provided to all employees.

Undue Hardship: The Limitation on Accommodation

The only legal limit to an employer’s duty to provide reasonable accommodation is if it causes “undue hardship.” Undue hardship is defined as significant difficulty or expense, considering the employer’s resources and the nature of the accommodation. This includes financial difficulty, but also accommodations that are excessively disruptive, substantial, or fundamentally alter the nature of the business. Each request for accommodation must be assessed individually to determine if it poses an undue hardship. It’s crucial to understand that the ADA’s standard for undue hardship is distinct from that used under Title VII of the Civil Rights Act of 1964 for religious accommodation.

Requesting Reasonable Accommodation

Reasonable Accommodation and Job Applicants

Reasonable Accommodation Related to Benefits and Privileges of Employment

The ADA requires employers to ensure that employees with disabilities have equal access to the “benefits and privileges of employment” enjoyed by their non-disabled peers. These benefits and privileges encompass employer-sponsored training, services (like employee assistance programs, credit unions, cafeterias, gyms, and transportation), and social functions (such as retirement parties, birthday celebrations, and company outings). If an employee with a disability requires a reasonable accommodation to access and participate equally in these benefits, the employer must provide it, unless it can demonstrate undue hardship.

14. Is an employer obligated to provide reasonable accommodation to ensure an employee with a disability has equal access to workplace information?

Yes. Information in the workplace is conveyed through various channels, including computers, bulletin boards, mailboxes, posters, and public address systems. Employers must ensure that employees with disabilities can access information provided to other similarly-situated employees, regardless of whether this information is directly related to job performance.

Example A: A blind employee uses adaptive computer equipment to integrate with the company network, accessing email and bulletin boards. When the employer upgrades the computer system, they must also update the adaptive equipment to maintain the employee’s network access, barring undue hardship. Simply offering alternative communication methods like written or phone messages is insufficient if electronic mail is the primary communication method for all employees.

Example B: A Human Resources Director uses a public address system for announcements and meeting reminders. To accommodate a deaf employee, the Director sends an advance email with the same information. Since the Director is the sole user of the PA system, ensuring email notifications for this employee provides equal access to workplace communications.

15. Must employers provide reasonable accommodation to enable employees to attend training programs?

Yes. Employers are required to provide reasonable accommodations, such as sign language interpreters or materials in alternative formats (Braille, large print, audio-cassette), to give employees with disabilities an equal opportunity to participate in employer-sponsored training programs, unless it causes undue hardship. This applies to both in-house and external training, regardless of location.

Example A: XYZ Corp. contracts Super Trainers, Inc., to provide mediation training to HR staff at XYZ’s facility. A blind staff member requests Braille materials, but Super Trainers refuses. XYZ argues it’s Super Trainers’ responsibility.

Both XYZ (as a Title I employer) and Super Trainers (as a Title III public accommodation) have obligations to provide accessible materials. Super Trainers’ Title III obligations do not relieve XYZ of its Title I duty to provide reasonable accommodation, including Braille materials, absent undue hardship. Employers should clarify accommodation responsibilities in contracts with external training providers.

Example B: XYZ Corp. offers optional CPR training. A deaf employee requests a sign language interpreter to attend. XYZ must provide the interpreter because the CPR training is a benefit offered to all employees, even though it’s optional.

Types of Reasonable Accommodations Related to Job Performance

Several types of reasonable accommodations are directly related to job performance.

Job Restructuring

Job restructuring involves modifying job roles to better suit an employee’s abilities. This can include:

• Reallocating or redistributing marginal job functions that an employee cannot perform due to a disability.
• Altering when and how job functions, whether essential or marginal, are performed.

Employers are not required to reallocate essential job functions but may choose to do so.

16. If an employer restructures a job by removing marginal functions as a reasonable accommodation, can they then assign other marginal functions that the employee can perform?

Yes. Employers can redistribute marginal functions between employees to restructure a job as a reasonable accommodation.

Example: A cleaning crew works in an office building. One member with a prosthetic leg can walk well but struggles with stairs (a marginal function). Another crew member’s marginal tasks include cleaning the employee lounge kitchen, which the first member can do. The employer can swap these marginal functions as a reasonable accommodation.

Leave

Granting leave, whether paid or unpaid, is a form of reasonable accommodation when necessitated by an employee’s disability. Employers are not required to provide more paid leave than they offer to similarly-situated employees. Typically, employees with disabilities should use accrued paid leave first, followed by unpaid leave if needed. For instance, if an employee accrues 10 days of paid leave and requires 15 days for a disability-related reason, the employer should allow 10 days of paid leave and 5 days of unpaid leave.

Disability-related reasons for leave can include:

• Medical treatments (surgery, therapy, substance abuse treatment, dialysis).
• Rehabilitation services or physical/occupational therapy.
• Recovery from illness or episodic disability symptoms.
• Repairing or adjusting assistive devices (wheelchairs, accessible vans, prosthetics).
• Avoiding temporary adverse workplace conditions (e.g., extreme temperatures due to air conditioning failure, which could harm someone with multiple sclerosis).
• Training a service animal.
• Receiving disability-related training (Braille, sign language).

Modified or Part-Time Schedule

Modified Workplace Policies

Reassignment

Reassignment to a vacant position is specifically listed in the ADA as a form of reasonable accommodation. This accommodation is necessary when an employee can no longer perform the essential functions of their current position due to a disability, even with other accommodations, unless it poses an undue hardship for the employer.

The employee must be “qualified” for the new position, meaning they meet the necessary skills, experience, education, and job-related requirements, and can perform the essential functions of the new role, with or without reasonable accommodation. The employee does not need to be the most qualified candidate for the position to be eligible for reassignment.

Employers are not required to train an employee to become qualified for a new position. However, if an employee being reassigned requires training that is normally provided to new hires or transferees in that position, the employer must provide it.

Example A: An employee is considered for reassignment to a position requiring Spanish proficiency for an essential function, but they lack Spanish skills and request language training. The employer is not obligated to provide Spanish training as part of the reassignment duty, so the employee is not qualified for this position.

Example B: An employee is reassigned to a contracting position for which they are qualified. The employer provides specialized contracting rules training to all new hires and transferees in these roles. The employer must provide this specialized training to the reassigned employee as well.

Before considering reassignment, employers should first explore accommodations that would enable the employee to remain in their current position. Reassignment is generally considered a last resort, necessary only if no effective accommodations exist for the current role, or if all other reasonable accommodations would cause undue hardship. However, if both employer and employee agree that a transfer is preferable to accommodations in the current role, the employer may transfer the employee.

“Vacant” means the position is available when the employee requests accommodation, or the employer knows it will become available within a reasonable timeframe. What constitutes a “reasonable timeframe” is case-specific, depending on factors like the employer’s historical vacancy patterns. A position is vacant even if advertised or posted for applications. Employers are not required to “bump” another employee or create a new position to facilitate reassignment.

Example C: An employer is seeking reassignment for an employee. No positions are currently vacant, but the employer learns of a resignation, making an equivalent position vacant in four weeks. If the employee is qualified for this upcoming vacancy, the employer must offer it as a reassignment.

Example D: An employer seeks reassignment for an employee, with no current vacancies. They know an employee in an equivalent position will retire in six months. While the employee needing reassignment is qualified, the employer is not obligated to hold the position for six months, as this is beyond a “reasonable timeframe.” (However, when the position becomes vacant and is advertised, the employee with a disability must be allowed to apply and receive due consideration.)

Employers must reassign an employee to a vacant position that is equivalent in pay, status, and other relevant factors (benefits, location), if the employee is qualified. If no equivalent vacant position exists, reassignment to a lower-level vacant position for which the employee is qualified is required. If multiple suitable vacancies exist, the employer should place the employee in the position closest to their original role in terms of pay and status. If unclear, the employer should consult the employee’s preferences before making a final reassignment decision. Reassignment does not include promotions; employees must compete for promotional opportunities.

Other Reasonable Accommodation Issues

Undue Hardship Issues

Employers are not required to provide reasonable accommodations that would cause “undue hardship.” Claims of undue hardship must be based on a detailed, individualized assessment of current circumstances, showing that a specific accommodation would create significant difficulty or expense. Generalized conclusions are insufficient.

Factors in determining undue hardship include:

• Nature and cost of the accommodation.
• Financial resources of the facility providing the accommodation; number of employees at the facility; impact of the accommodation on the facility’s resources and expenses.
• Overall financial resources, size, number of employees, and type and location of employer’s facilities (if the accommodating facility is part of a larger organization).
• Type of employer operations, including workforce structure, geographic separateness, and administrative/fiscal relationships between the accommodating facility and the larger employer.
• Impact of the accommodation on facility operations.

Legislative history suggests that Congress intended employers to explore external funding sources when assessing accommodation costs. Undue hardship is based on the net cost to the employer, after considering available external funding, such as state rehabilitation agencies or tax credits and deductions. If an accommodation causes undue hardship in part, employers should ask if the employee will cover the incremental cost to reduce the burden.

If one accommodation option causes undue hardship, but another effective accommodation does not, the employer must provide the second accommodation.

Undue hardship cannot be based on employee or customer fears or prejudices about the individual’s disability, nor on potential negative impacts on employee morale. However, undue hardship may be shown if an accommodation would be significantly disruptive to other employees’ work.

Example A: An employee undergoing chemotherapy for breast cancer experiences fatigue, affecting her workload. To help her focus on essential functions, the employer temporarily reassigns three marginal tasks to another employee. While the second employee is unhappy about extra work, it does not significantly affect their ability to perform their own tasks. This does not constitute undue hardship due to insignificant operational disruption.

Example B: A convenience store clerk with multiple sclerosis requests part-time work as a reasonable accommodation. The store staffs two clerks per shift. Reducing one clerk’s hours would significantly increase the other’s workload, potentially impacting customer service, restocking, and security. The employer can claim undue hardship due to significant operational disruption and deny the reduced hours. However, they should explore other possible accommodations that might assist the clerk without causing undue hardship.

Burdens of Proof

In US Airways, Inc. v. Barnett, the Supreme Court outlined the burdens of proof in ADA reasonable accommodation cases. To avoid summary judgment, a plaintiff/employee need only demonstrate that an accommodation is “reasonable on its face,” meaning it appears reasonable in typical scenarios. Once reasonableness is shown, the burden shifts to the defendant/employer to provide specific evidence that the accommodation would cause undue hardship in their particular context.

This burden-shifting framework does not alter the interactive process triggered by an accommodation request. Employers should still engage in open communication to gather necessary information for informed decisions. This interactive process is crucial in what we might consider a “rule out” strategy – by engaging in dialogue and exploring various options, less viable accommodations can be “ruled out,” leading to the selection of the most appropriate and mutually agreeable solution.

Instructions for Investigators

When assessing potential ADA violations for denying reasonable accommodation, investigators should consider:

• Is the Charging Party “otherwise qualified”? (Qualified for the job except for needing reasonable accommodation to perform essential functions due to disability.)
• Did the Charging Party (or representative) request reasonable accommodation? (Did they inform the employer of a needed workplace adjustment or change due to a medical condition?)
  • Did the Respondent request disability/functional limitation documentation? If yes, was it provided? Was there a legitimate reason for requesting documentation?
  • What specific reasonable accommodation was requested?
  • Was there a connection between the requested accommodation and functional limitations from the disability?
  • Was the accommodation need related to medication use, treatment side effects, or disability symptoms?
• What was the purpose of the accommodation request:
  • Application process?
  • Job performance?
  • Enjoying employment benefits and privileges?
• Should the Respondent have initiated the interactive process or provided accommodation even without a direct request?
• What was the Respondent’s response to the accommodation request? (Did they engage in an interactive process? Describe actions/statements of both parties.)
• If the Respondent provided a different accommodation than requested, why? Why did the Respondent believe their accommodation was effective? Why did the Charging Party find it ineffective?
• What type of accommodation could have been “reasonable” and effective in removing the workplace barrier?
• Does the charge involve reasonable accommodation and conduct rule violations?
• If reassignment is alleged as a denied reasonable accommodation:
  • Were other accommodations to remain in the current position discussed before reassignment?
  • Did the Respondent have vacant positions?
  • Did the Respondent inform the Charging Party about potential vacancies?
  • Was the Charging Party qualified for a vacant position?
  • If multiple vacancies existed, was the Charging Party placed in the most equivalent position?
  • If reassignment conflicted with seniority, were there “special circumstances” making reassignment “reasonable”?
• If the Respondent claims undue hardship:
  • What evidence supports significant difficulty or expense?
  • If a modified schedule or leave, is undue hardship based on the impact on other employees?
  • If leave, is undue hardship based on the amount of leave requested?
  • If “special circumstances” for reassignment despite seniority exist, would reassignment still be an undue hardship?
  • Is undue hardship claimed due to changes needed to property owned by another entity?
  • If undue hardship is claimed for a specific accommodation, was there another reasonable accommodation that would not cause undue hardship?
• Based on the evidence, is the Charging Party a qualified individual with a disability? (Can they perform essential job functions with or without reasonable accommodation?)

Appendix: Resources for Locating Reasonable Accommodations

U.S. Equal Employment Opportunity Commission
1-800-669-3362 (Voice)
1-800-800-3302 (TT)
https://www.eeoc.gov

U.S. Department of Labor (Family and Medical Leave Act Information)
Written Materials: 1-800-959-3652 (Voice), 1-800-326-2577 (TT)
Questions: (202) 219-8412 (Voice)

Internal Revenue Service (Tax Credits/Deductions for Accommodations)
(202) 622-6060 (Voice)

Job Accommodation Network (JAN)
1-800-232-9675 (Voice/TT)
http://janweb.icdi.wvu.edu/

ADA Disability and Business Technical Assistance Centers (DBTACs)
1-800-949-4232 (Voice/TT)

Registry of Interpreters for the Deaf
(301) 608-0050 (Voice/TT)

RESNA Technical Assistance Project
(703) 524-6686 (Voice), (703) 524-6639 (TT)
http://www.resna.org/hometa1.htm

Index

Note: Index page numbers have been removed as this is an HTML format.

Applicants and reasonable accommodation
Attendance and reasonable accommodation
Benefits and privileges of employment and reasonable accommodation
Access to information
Employer-sponsored services
Employer-sponsored social functions
Employer-sponsored training
Burdens of proof
Choosing between two or more reasonable accommodations
Conduct rules
Confidentiality and reasonable accommodation
Disparate treatment (versus reasonable accommodation)
Employees (part-time, full-time, probationary)
Essential functions and reasonable accommodation
Family and Medical Leave Act (FMLA); Relationship with the ADA
Firm choice and reasonable accommodation (See also “Last chance agreements”)
Interactive process between employer and individual with a disability to determine reasonable accommodation
Landlord/Tenant and reasonable accommodation
Last chance agreements and reasonable accommodation (See also “Firm choice”)
Marginal functions and reasonable accommodation
Medical treatment and reasonable accommodation
Employer monitoring of medical treatment
Failure to obtain medical treatment
Leave
Side effects of medical treatment and need for reasonable accommodation
Medication and reasonable accommodation
Employer monitoring of medication
Failure to use medication
Side effects of medication and need for reasonable accommodation
Personal use items and reasonable accommodation
Production standards and reasonable accommodation
Public accommodation and employer; who provides reasonable accommodation
“Reasonable accommodation” (definition of)
Reasonable accommodation (effectiveness of)
Reasonable accommodation (how many must employer provide)
Reasonable accommodation (types of)
Access to equipment and computer technology
Changing tests and training materials
Job restructuring
Leave
Alternatives to leave
Approximate versus fixed date of return
Family and Medical Leave Act (FMLA)
Holding open an employee’s position
“No-fault” leave policies
Penalizing employees who take leave
Marginal functions (modifying how they are performed; elimination or substitution of)
Modified or part-time schedule
Family and Medical Leave Act (FMLA)
Modifying method of performing job function
Modifying workplace policies
Readers
Reassignment
Employee must be qualified for vacant position
Equivalent position
Interactive process between employer and employee
Relationship between reassignment and general transfer policies
Salary for new position
Seniority systems and reassignment
Vacant position
When must reassignment be offered
Who is entitled to reassignment
Sign language interpreters
Supervisory methods (changing)
Working at home
Reasonable accommodation (who is entitled to receive)
Rehabilitation Act of 1973; Relationship with the ADA
Relationship and association with a person with a disability
Requests for reasonable accommodation
Choosing between two or more reasonable accommodations
Documentation on the need for reasonable accommodation
How to request reasonable accommodation
Interactive process between employer and individual with a disability
Timing of employer’s response to a request for reasonable accommodation
When should individual with disability request reasonable accommodation
Who may request reasonable accommodation
Right of individual with a disability to refuse reasonable accommodation
Role of health care providers in reasonable accommodation process
Seniority systems and reassignment
State or local antidiscrimination laws; Relationship with the ADA
Supervisors and reasonable accommodation
Undue hardship
Cost
Cost-benefit analysis
Definition of
Disruption to operations
Factors to assess
Landlord/Tenant
Leave
Work environment and reasonable accommodation

Footnotes

1. 42 U.S.C. §§ 12101-12117, 12201-12213 (1994) (codified as amended).

   The analysis in this guidance applies to federal sector complaints of non-affirmative action employment discrimination arising under section 501 of the Rehabilitation Act of 1973. 29 U.S.C. § 791(g) (1994). It also applies to complaints of non-affirmative action employment discrimination arising under section 503 and employment discrimination under section 504 of the Rehabilitation Act. 29 U.S.C. §§ 793(d), 794(d) (1994).

   The ADA’s requirements regarding reasonable accommodation and undue hardship supercede any state or local disability antidiscrimination laws to the extent that they offer less protection than the ADA. See 29 C.F.R. § 1630.1(c)(2) (1997).

2. In addition to employers, the ADA requires employment agencies, labor organizations, and joint labor-management committees to provide reasonable accommodations. See 42 U.S.C. § 12112(a), (b)(5)(A) (1994).

3. 29 C.F.R. pt. 1630 app. § 1630.2(o) (1997).

4. 29 C.F.R. § 1630.2(o)(1)(i-iii) (1997) (emphasis added). The notices that employers and labor unions must post informing applicants, employees, and members of labor organizations of their ADA rights must include a description of the reasonable accommodation requirement. These notices, which must be in an accessible format, are available from the EEOC. See the Appendix.

5. All examples used in this document assume that the applicant or employee has an ADA “disability.”

   Individuals with a relationship or association with a person with a disability are not entitled to receive reasonable accommodations. See Den Hartog v. Wasatch Academy, 129 F.3d 1076, 1084, 7 AD Cas. (BNA) 764, 772 (10th Cir. 1997).

6. See 29 C.F.R. pt. 1630 app. § 1630.9 (1997); see also H.R. Rep. No. 101-485, pt. 3, at 39 (1990) [hereinafter House Judiciary Report]; H.R. Rep. No. 101-485, pt. 2, at 65 (1990) [hereinafter House Education and Labor Report]; S. Rep. No. 101-116, at 34 (1989)[hereinafter Senate Report].

   For more information concerning requests for a reasonable accommodation, see Questions 1-4, infra. For a discussion of the limited circumstance under which an employer would be required to ask an individual with a disability whether s/he needed a reasonable accommodation, see Question 40, infra.

7. 42 U.S.C. § 12111(9) (1994); 29 C.F.R. § 1630.2(o)(2)(i-ii) (1997).

8. US Airways, Inc. v. Barnett, 535 U.S., 122 S. Ct. 1516, 1523 (2002).

9. Id.

   Some courts have said that in determining whether an accommodation is “reasonable,” one must look at the costs of the accommodation in relation to its benefits. See, e.g., Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1184 n.10, 5 AD Cas. (BNA) 1326, 1335 n.10 (6th Cir. 1996); Vande Zande v. Wisconsin Dept. of Admin., 44 F.3d 538, 543, 3 AD Cas. (BNA) 1636, 1638-39 (7th Cir. 1995). This “cost/benefit” analysis has no foundation in the statute, regulations, or legislative history of the ADA. See 42 U.S.C. § 12111(9), (10) (1994); 29 C.F.R. § 1630.2(o), (p) (1997); see also Senate Report, supra note 6, at 31-35; House Education and Labor Report, supra note 6, at 57-58.

10. See US Airways, Inc. v. Barnett, 535 U.S., 122 S. Ct. 1516, 1522 (2002). The Court explained that “in ordinary English the word ‘reasonable’ does not mean ‘effective.’ It is the word ‘accommodation,’ not the word ‘reasonable,’ that conveys the need for effectiveness.” Id.

11. A TTY is a device that permits individuals with hearing and speech impairments to communicate by telephone.

12. In US Airways, Inc. v. Barnett, the Supreme Court held that it was unreasonable, absent “special circumstances,” for an employer to provide a reassignment that conflicts with the terms of a seniority system. 535 U.S., 122 S. Ct. 1516, 1524-25 (2002). For a further discussion of this issue, see Question 31, infra.

13. “[W]ith or without reasonable accommodation” includes, if necessary, reassignment to a vacant position. Thus, if an employee is no longer qualified because of a disability to continue in his/her present position, an employer must reassign him/her as a reasonable accommodation. See the section on “Reassignment,” infra pp. 37-38 and n.77.

14. 29 C.F.R. pt. 1630 app. § 1630.2(n) (1997).

15. 29 C.F.R. pt. 1630 app. § 1630.9 (1997).

16. See 42 U.S.C. § 12112 (b)(5)(A) (1994) (it is a form of discrimination to fail to provide a reasonable accommodation “unless such covered entity can demonstrate that the accommodation would impose an undue hardship . . .”); see also 42 U.S.C.

    § 12111(10) (1994) (defining “undue hardship” based on factors assessing cost and difficulty).

    The legislative history discusses financial, administrative, and operational limitations on providing reasonable accommodations only in the context of defining “undue hardship.” Compare Senate Report, supra note 6, at 31-34 with 35-36; House Education and Labor Report, supra note 6, at 57-58 with 67-70.

17. See 42 U.S.C. § 12111(10) (1994); 29 C.F.R. § 1630.2(p) (1997); 29 C.F.R. pt. 1630 app. § 1630.2(p) (1997).

18. See 29 C.F.R. pt. 1630 app. § 1630.15(d) (1997). See also Eckles v. Consolidated Rail Corp., 94 F.3d 1041, 1048-49, 5 AD Cas. (BNA) 1367, 1372-73 (7th Cir. 1996); Bryant v. Better Business Bureau of Maryland, 923 F. Supp. 720, 740, 5 AD Cas. (BNA) 625, 638 (D. Md. 1996).

19. See, e.g., Schmidt v. Safeway Inc., 864 F. Supp. 991, 997, 3 AD Cas. (BNA) 1141, 1146-47 (D. Or. 1994) (“statute does not require the plaintiff to speak any magic words. . . The employee need not mention the ADA or even the term ‘accommodation.'”). See also Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 694, 8 AD Cas. (BNA) 875, 882 (7th Cir. 1998) (“[a] request as straightforward as asking for continued employment is a sufficient request for accommodation”); Bultemeyer v. Ft. Wayne Community Schs., 100 F.3d 1281, 1285, 6 AD Cas. (BNA) 67, 71 (7th Cir. 1996) (an employee with a known psychiatric disability requested reasonable accommodation by stating that he could not do a particular job and by submitting a note from his psychiatrist); McGinnis v. Wonder Chemical Co., 5 AD Cas. (BNA) 219 (E.D. Pa. 1995) (employer on notice that accommodation had been requested because: (1) employee told supervisor that his pain prevented him from working and (2) employee had requested leave under the Family and Medical Leave Act).

    Nothing in the ADA requires an individual to use legal terms or to anticipate all of the possible information an employer may need in order to provide a reasonable accommodation. The ADA avoids a formulistic approach in favor of an interactive discussion between the employer and the individual with a disability, after the individual has requested a change due to a medical condition. Nevertheless, some courts have required that individuals initially provide detailed information in order to trigger the employer’s duty to investigate whether reasonable accommodation is required. See, e.g., Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 165, 5 AD Cas. (BNA) 1653, 1660 (5th Cir. 1996); Miller v. Nat’l Cas. Co., 61 F.3d 627, 629-30, 4 AD Cas. (BNA) 1089, 1090-91 (8th Cir. 1995).

20. See Questions 5 – 7, infra, for a further discussion on when an employer may request reasonable documentation about a person’s “disability” and the need for reasonable accommodation.

21. Cf. Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 5 AD Cas. (BNA) 304 (7th Cir. 1996); Schmidt v. Safeway Inc., 864 F. Supp. 991, 997, 3 AD Cas. (BNA) 1141, 1146 (D. Or. 1994). But see Miller v. Nat’l Casualty Co., 61 F.3d 627, 630, 4 AD Cas. (BNA) 1089, 1091 (8th Cir. 1995) (employer had no duty to investigate reasonable accommodation despite the fact that the employee’s sister notified the employer that the employee “was mentally falling apart and the family was trying to get her into the hospital”).

    The employer should be receptive to any relevant information or requests it receives from a third party acting on the individual’s behalf because the reasonable accommodation process presumes open communication in order to help the employer make an informed decision. See 29 C.F.R. §§ 1630.2(o), 1630.9 (1997); 29 C.F.R. pt. 1630 app. §§ 1630.2(o), 1630.9 (1997).

22. Although individuals with disabilities are not required to keep records, they may find it useful to document requests for reasonable accommodation in the event there is a dispute about whether or when they requested accommodation. Employers, however, must keep all employment records, including records of requests for reasonable accommodation, for one year from the making of the record or the personnel action involved, whichever occurs later. If a charge is filed, records must be preserved until the charge is resolved. 29 C.F.R. § 1602.14 (1997).

23. Cf. Masterson v. Yellow Freight Sys., Inc., Nos. 98-6126, 98-6025, 1998 WL 856143 (10th Cir. Dec. 11, 1998) (fact that an employee with a disability does not need a reasonable accommodation all the time does not relieve employer from providing an accommodation for the period when he does need one).

24. See 29 C.F.R. § 1630.2(o)(3) (1997); 29 C.F.R. pt. 1630 app. §§ 1630.2(o), 1630.9 (1997); see also Haschmann v. Time Warner Entertainment Co., 151 F.3d 591, 601, 8 AD Cas. (BNA) 692, 700 (7th Cir. 1998); Dalton v. Subaru-Isuzu, 141 F.3d 667, 677, 7 AD Cas. (BNA) 1872, 1880-81 (7th Cir. 1998). The appendix to the regulations at § 1630.9 provides a detailed discussion of the reasonable accommodation process.

    Engaging in an interactive process helps employers to discover and provide reasonable accommodation. Moreover, in situations where an employer fails to provide a reasonable accommodation (and undue hardship would not be a valid defense), evidence that the employer engaged in an interactive process can demonstrate a “good faith” effort which can protect an employer from having to pay punitive and certain compensatory damages. See 42 U.S.C. § 1981a(a)(3) (1994).

25. The burden-shifting framework outlined by the Supreme Court in US Airways, Inc. v. Barnett, 535 U.S., 122 S. Ct. 1516, 1523 (2002), does not affect the interactive process between an employer and an individual seeking reasonable accommodation. See pages 61-62, infra, for a further discussion.

26. See 29 C.F.R. pt. 1630 app. § 1630.9 (1997). The Appendix to this Guidance provides a list of resources to identify possible accommodations.

27. 29 C.F.R. pt. 1630 app. § 1630.9 (1997); see also EEOC Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations at 6, 8 FEP Manual (BNA) 405:7191, 7193 (1995) [hereinafter Preemployment Questions and Medical Examinations]; EEOC Enforcement Guidance: The Americans with Disabilities Act and Psychiatric Disabilities at 22-23, 8 FEP Manual (BNA) 405:7461, 7472-73 (1997) [hereinafter ADA and Psychiatric Disabilities]. Although the latter Enforcement Guidance focuses on psychiatric disabilities, the legal standard under which an employer may request documentation applies to disabilities generally.

    When an employee seeks leave as a reasonable accommodation, an employer’s request for documentation about disability and the need for leave may overlap with the certification requirements of the Family and Medical Leave Act (FMLA), 29 C.F.R. §§ 825.305-.306, 825.310-.311 (1997).

28. Since a doctor cannot disclose information about a patient without his/her permission, an employer must obtain a release from the individual that will permit his/her doctor to answer questions. The release should be clear as to what information will be requested. Employers must maintain the confidentiality of all medical information collected during this process, regardless of where the information comes from. See Question 42 and note 111, infra.

29. See Question 9, infra, for information on choosing between two or more effective accommodations.

30. This employee also might be covered under the Family and Medical Leave Act, and if so, the employer would need to comply with the requirements of that statute.

31. See Templeton v. Neodata Servs., Inc., No. 98-1106, 1998 WL 852516 (10th Cir. Dec. 10, 1998); Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1134, 5 AD Cas. (BNA) 304, 307 (7th Cir. 1996); McAlpin v. National Semiconductor Corp., 921 F. Supp. 1518, 1525, 5 AD Cas. (BNA) 1047, 1052 (N.D. Tex. 1996).

32. See Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 700, 8 AD Cas. (BNA) 875, 887 (7th Cir. 1998).

33. If an individual provides sufficient documentation to show the existence of an ADA disability and the need for reasonable accommodation, continued efforts by the employer to require that the individual see the employer’s health professional could be considered retaliation.

34. Employers also may consider alternatives like having their health professional consult with the individual’s health professional, with the employee’s consent.

35. See 29 C.F.R. pt. 1630 app. § 1630.9 (1997); see also Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285-86, 6 AD Cas. (BNA) 1834, 1839 (11th Cir. 1997); Hankins v. The Gap, Inc., 84 F.3d 797, 800, 5 AD Cas. (BNA) 924, 926-27 (6th Cir. 1996); Gile v. United Airlines, Inc., 95 F.3d 492, 499, 5 AD Cas. (BNA) 1466, 1471 (7th Cir. 1996).

36. 29 C.F.R. pt. 1630 app. §1630.9 (1997).

37. See Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 677, 7 AD Cas. (BNA) 1872, 1880 (7th Cir. 1998).

38. In determining whether there has been an unnecessary delay in responding to a request for reasonable accommodation, relevant factors would 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.

39. See 29 C.F.R. pt. 1630 app. § 1630.9 (1997); see also Hankins v. The Gap, Inc., 84 F.3d 797, 801, 5 AD Cas. (BNA) 924, 927 (6th Cir. 1996).

40. 42 U.S.C. § 12112(d)(2)(A) (1994); 29 C.F.R. § 1630.13(a) (1997). For a thorough discussion of these requirements, see Preemployment Questions and Medical Examinations, supra note 27, at 6-8, 8 FEP Manual (BNA) 405:7193-94.

41. 42 U.S.C. § 12112(d)(3) (1994); 29 C.F.R. § 1630.14(b) (1997); see also Preemployment Questions and Medical Examinations, supra note 27, at 20, 8 FEP Manual (BNA) 405:7201.

42. See Question 12, supra, for the circumstances under which an employer may ask an applicant whether s/he will need reasonable accommodation to perform specific job functions.

43. The discussions and examples in this section assume that there is only one effective accommodation and that the reasonable accommodation will not cause undue hardship.

44. See 29 C.F.R. pt. 1630 app. § 1630.9 (1997).

45. 42 U.S.C. §§ 12181(7), 12182(1)(A), (2)(A)(iii) (1994).

46. The discussions and examples in this section assume that there is only one effective accommodation and that the reasonable accommodation will not cause undue hardship.

    The types of reasonable accommodations discussed in this section are not exhaustive. For example, employees with disabilities may request reasonable accommodations to modify the work environment, such as changes to the ventilation system or relocation of a work space.

    See the Appendix for additional resources to identify other possible reasonable accommodations.

47. 42 U.S.C. § 12111(9)(B) (1994); 29 C.F.R. pt. 1630 app. §§ 1630.2(o), 1630.9 (1997); see Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112-13, 4 AD Cas. (BNA) 1234, 1236-37 (8th Cir. 1995).

48. 29 C.F.R. pt. 1630 app. § 1630.2(o) (1997). See Cehrs v. Northeast Ohio Alzheimer’s, 155 F.3d 775, 782, 8 AD Cas. (BNA) 825, 830-31 (6th Cir. 1998).

    An employee who needs leave, or a part-time or modified schedule, as a reasonable accommodation also may be entitled to leave under the Family and Medical Leave Act. See Questions 21 and 23, infra.

49. See A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act, at 3.10(4), 8 FEP Manual (BNA) 405:6981, 7011 (1992) [hereinafter TAM].

50. 42 U.S.C. § 12111(9)(B) (1994); 29 C.F.R. § 1630.2(o)(2)(ii) (1997). See US Airways, Inc. v. Barnett, 535 U.S., 122 S. Ct. 1516, 1521 (2002). See also Question 24, infra. While undue hardship cannot be based solely on the existence of a no-fault leave policy, the employer may be able to show undue hardship based on an individualized assessment showing the disruption to the employer’s operations if additional leave is granted beyond the period allowed by the policy. In determining whether undue hardship exists, the employer should consider how much additional leave is needed (e.g., two weeks, six months, one year?).

51. See Schmidt v. Safeway Inc., 864 F. Supp. 991, 996-97, 3 AD Cas. (BNA) 1141, 1145-46 (D. Or. 1994); Corbett v. National Products Co., 4 AD Cas. (BNA) 987, 990 (E.D. Pa. 1995).

52. See EEOC Enforcement Guidance: Workers’ Compensation and the ADA at 16, 8 FEP Manual (BNA) 405:7391, 7399 (1996) [hereinafter Workers’ Compensation and the ADA]. See also pp. 37-45, infra, for information on reassignment as a reasonable accommodation.

53. Cf. Kiel v. Select Artificials, 142 F.3d 1077, 1080, 8 AD Cas. (BNA) 43, 44 (8th Cir. 1998).

54. See Criado v. IBM, 145 F.3d 437, 444-45, 8 AD Cas. (BNA) 336, 341 (1st Cir. 1998).

55. But see Matthews v. Commonwealth Edison Co., 128 F.3d 1194, 1197-98, 7 AD Cas. (BNA) 1651, 1653-54 (7th Cir. 1997) (an employee who, because of a heart attack, missed several months of work and returned on a part-time basis until health permitted him to work full-time, could be terminated during a RIF based on his lower productivity). In reaching this decision, the Seventh Circuit failed to consider that the employee needed leave and a modified schedule as reasonable accommodations for his disability, and that the accommodations became meaningless when he was penalized for using them.

56. If an employee, however, qualifies for leave under the Family and Medical Leave Act, an employer may not require him/her to remain on the job with an adjustment in lieu of taking leave. See 29 C.F.R. § 825.702(d)(1) (1997).

57. See Question 9, supra.

58. For more detailed information on issues raised by the interplay between these statutes, refer to the FMLA/ADA Fact Sheet listed in the Appendix.

59. Employers should remember that many employees eligible for FMLA leave will not be entitled to leave as a reasonable accommodation under the ADA, either because they do not meet the ADA’s definition of disability or, if they do have an ADA disability, the need for leave is unrelated to that disability.

60. 29 C.F.R. §§ 825.214(a), 825.215 (1997).

61. For further information on the undue hardship factors, see infra pp. 55-56.

62. 29 C.F.R. § 825.702(c)(4) (1997).

63. 42 U.S.C. §12111 (9) (B) (1994); see Ralph v. Lucent Technologies, Inc., 135 F.3d 166, 172, 7 AD Cas. (BNA) 1345, 1349 (1st Cir. 1998) (a modified schedule is a form of reasonable accommodation).

64. See US Airways, Inc. v. Barnett, 535 U.S., 122 S. Ct. 1516, 1521 (2002).

65. Certain courts have characterized attendance as an “essential function.” See, e.g., Carr v. Reno, 23 F.3d 525, 530, 3 AD Cas. (BNA) 434, 438 (D.C. Cir. 1994); Jackson v. Department of Veterans Admin., 22 F.3d 277, 278-79, 3 AD Cas. (BNA) 483, 484 (11th Cir. 1994). Attendance, however, is not an essential function as defined by the ADA because it is not one of “the fundamental job duties of the employment position.” 29 C.F.R. § 1630.2(n)(1) (1997) (emphasis added). As the regulations make clear, essential functions are duties to be performed. 29 C.F.R. § 1630.2(n)(2) (1997). See Haschmann v. Time Warner Entertainment Co., 151 F.3d 591, 602, 8 AD Cas. (BNA) 692, 701 (7th Cir. 1998); Cehrs v. Northeast Ohio Alzheimer’s, 155 F.3d 775, 782-83, 8 AD Cas. (BNA) 825, 830-31 (6th Cir. 1998).

    On the other hand, attendance is relevant to job performance and employers need not grant all requests for a modified schedule. To the contrary, if the time during which an essential function is performed is integral to its successful completion, then an employer may deny a request to modify an employee’s schedule as an undue hardship.

66. Employers covered under the Family and Medical Leave Act (FMLA) should determine whether any denial of leave or a modified schedule is also permissible under that law. See 29 C.F.R. § 825.203 (1997).

67. For more detailed information on issues raised by the interplay between these statutes, refer to the FMLA/ADA Fact Sheet listed in the Appendix.

68. See infra pp. 37-45 for more information on reassignment, including under what circumstances an employer and employee may voluntarily agree that a transfer is preferable to having the employee remain in his/her current position.

69. 29 C.F.R. § 825.204 (1997); see also special rules governing intermittent leave for instructional employees at §§ 825.601, 825.602.

70. 29 C.F.R. §§ 825.209, 825.210 (1997).

71. 42 U.S.C. § 12111(9)(B) (1994); 29 C.F.R. § 1630.2(o)(2)(ii) (1997). See US Airways, Inc. v. Barnett, 535 U.S., 122 S. Ct. 1516, 1521 (2002).

72. See Dutton v. Johnson County Bd. of Comm’rs, 868 F. Supp. 1260, 1264-65, 3 AD Cas. (BNA) 1614, 1618 (D. Kan. 1994).

73. See 29 C.F.R. pt. 1630 app. § 1630.15(b), (c) (1997). See also Question 17, supra.

74. But cf. Miller v. Nat’l Casualty Co., 61 F.3d 627, 629-30, 4 AD Cas. (BNA) 1089, 1090 (8th Cir. 1995) (court refuses to find that employee’s sister had requested reasonable accommodation despite the fact that the sister informed the employer that the employee was having a medical crisis necessitating emergency hospitalization).

75. For information on how reassignment may apply to employers who provide light duty positions, see Workers’ Compensation and the ADA, supra note 52, at 20-23, 8 FEP Manual (BNA) 405:7401-03.

76. 42 U.S.C. § 12111(9)(B) (1994); 29 C.F.R. § 1630.2(o)(2)(ii) (1997). See Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1114, 4 AD Cas. (BNA) 1234, 1238 (8th Cir. 1995); Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1187, 5 AD Cas. (BNA) 1326, 1338 (6th Cir. 1996); Gile v. United Airlines, Inc., 95 F.3d 492, 498, 5 AD Cas. (BNA) 1466, 1471 (7th Cir. 1996).

    Reassignment is available only to employees, not to applicants. 29 C.F.R. pt. 1630 app. § 1630.2(o) (1997).

77. 29 C.F.R. pt. 1630 app. § 1630.2(o) (1997); see Haysman v. Food Lion, Inc., 893 F. Supp. 1092, 1104, 4 AD Cas. (BNA) 1297, 1305 (S.D. Ga. 1995).

    Some courts have found that an employee who is unable to perform the essential functions of his/her current position is unqualified to receive a reassignment. See, e.g., Schmidt v. Methodist Hosp. of Indiana, Inc., 89 F.3d 342, 345, 5 AD Cas. (BNA) 1340, 1342 (7th Cir. 1996); Pangalos v. Prudential Ins. Co. of Am., 5 AD Cas. (BNA) 1825, 1826 (E.D. Pa. 1996). These decisions, however, nullify Congress’ inclusion of reassignment in the ADA. An employee requires a reassignment only if s/he is unable to continue performing the essential functions of his/her current position, with or without reasonable accommodation. Thus, an employer must provide reassignment either when reasonable accommodation in an employee’s current job would cause undue hardship or when it would not be possible. See Aka v. Washington Hosp. Ctr.,156 F.3d 1284, 1300-01, 8 AD Cas. (BNA) 1093, 1107-08 (D.C. Cir. 1998); Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 678, 7 AD Cas. (BNA) 1872, 1880 (7th Cir. 1998); see also ADA and Psychiatric Disabilities, supra note 27, at 28, 8 FEP Manual (BNA) 405:7476; Workers’ Compensation and the ADA, supra note 52, at 17-18, 8 FEP Manual (BNA) 405:7399-7400.

78. 29 C.F.R. § 1630.2(m) (1997); 29 C.F.R. pt. 1630 app. §§ 1630.2(m), 1630.2(o)(1997). See Stone v. Mount Vernon, 118 F.3d 92, 100-01, 6 AD Cas. (BNA) 1685, 1693 (2d Cir. 1997).

79. See Quintana v. Sound Distribution Corp., 6 AD Cas. (BNA) 842, 846 (S.D.N.Y. 1997).

80. See 29 C.F.R. pt. 1630 app. §1630.2(o) (1997); Senate Report, supra note 6, at 31; House Education and Labor Report, supra note 6, at 63.

81. For suggestions on what the employee can do while waiting for a position to become vacant within a reasonable amount of time, see note 89, infra.

82. See 29 C.F.R. pt. 1630 app. § 1630.2(o) (1997); see also White v. York Int’l Corp., 45 F.3d 357, 362, 3 AD Cas. (BNA) 1746, 1750 (10th Cir. 1995).

83. See 29 C.F.R. pt. 1630 app. § 1630.2(o) (1997).

84. See US Airways, Inc. v. Barnett, 535 U.S., 122 S. Ct. 1516, 1521, 1524 (2002); see also Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1304-05, 8 AD Cas. (BNA) 1093, 1110-11 (D.C. Cir. 1998); United States v. Denver, 943 F. Supp. 1304, 1312, 6 AD Cas. (BNA) 245, 252 (D. Colo. 1996). See also Question 24, supra.

85. 42 U.S.C. § 12111(9)(B) (1994); 29 C.F.R. § 1630.2(o)(2)(ii) (1997); see Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 695, 8 AD Cas. (BNA) 875, 883 (7th Cir. 1998); see generally Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 677-78, 7 AD Cas. (BNA) 1872, 1880-81 (7th Cir. 1998).

86. See Gile v. United Airlines, Inc., 95 F.3d 492, 499, 5 AD Cas. (BNA) 1466, 1472 (7th Cir. 1996); see generally United States v. Denver, 943 F. Supp. 1304, 1311-13, 6 AD Cas. (BNA) 245, 251-52 (D. Colo. 1996).

    Some courts have limited the obligation to provide a reassignment to positions within the same department or facility in which the employee currently works, except when the employer’s standard practice is to provide inter-department or inter-facility transfers for all employees. See, e.g., Emrick v. Libbey-Owens-Ford Co., 875 F. Supp. 393, 398, 4 AD Cas.(BNA) 1, 4-5 (E.D. Tex. 1995). However, the ADA requires modification of workplace policies, such as transfer policies, as a form of reasonable accommodation. See Question 24, supra. Therefore, policies limiting transfers cannot be a per se bar to reassigning someone outside his/her department or facility. Furthermore, the ADA requires employers to provide reasonable accommodations, including reassignment, regardless of whether such accommodations are routinely granted to non-disabled employees. See Question 26, supra.

87. See Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 695-96, 697-98, 8 AD Cas. (BNA) 875, 883, 884 (7th Cir. 1998) (employer cannot mislead disabled employees who need reassignment about full range of vacant positions; nor can it post vacant positions for such a short period of time that disabled employees on medical leave have no realistic chance to learn about them); Mengine v. Runyon, 114 F.3d 415, 420, 6 AD Cas. (BNA) 1530, 1534 (3d Cir. 1997) (an employer has a duty to make reasonable efforts to assist an employee in identifying a vacancy because an employee will not have the ability or resources to identify a vacant position absent participation by the employer); Woodman v. Runyon, 132 F.3d 1330, 1344, 7 AD Cas. (BNA) 1189, 1199 (10th Cir. 1997) (federal employers are far better placed than employees to investigate in good faith the availability of vacant positions).

88. See Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 678, 7 AD Cas. (BNA)1872, 1881 (7th Cir. 1998) (employer must first identify full range of alternative positions and then determine which ones employee qualified to perform, with or without reasonable accommodation); Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 700, 8 AD Cas. (BNA) 875, 886-87 (7th Cir. 1998) (employer’s methodology to determine if reassignment is appropriate does not constitute the “interactive process” contemplated by the ADA if it is directive rather than interactive); Mengine v. Runyon, 114 F.3d 415, 419-20, 6 AD Cas. (BNA) 1530, 1534 (3d Cir. 1997) (once an employer has identified possible vacancies, an employee has a duty to identify which one he is capable of performing).

89. If it will take several weeks to determine whether an appropriate vacant position exists, the employer and employee should discuss the employee’s status during that period. There are different possibilities depending on the circumstances, but they may include: use of accumulated paid leave, use of unpaid leave, or a temporary assignment to a light duty position. Employers also may choose to take actions that go beyond the ADA’s requirements, such as eliminating an essential function of the employee’s current position, to enable an employee to continue working while a reassignment is sought.

90. 42 U.S.C. § 12111(9)(b) (1994); 29 C.F.R. pt. 1630 app. § 1630.2(o) (1997). See Senate Report, supra note 6, at 31 (“If an employee, because of disability, can no longer perform the essential functions of the job that she or he has held, a transfer to another vacant job for which the person is qualified may prevent the employee from being out of work and the employer from losing a valuable worker.”). See Wood v. County of Alameda, 5 AD Cas. (BNA) 173, 184 (N.D. Cal. 1995) (when employee could no longer perform job because of disability, she was entitled to reassignment to a vacant position, not simply an opportunity to “compete”); cf. Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1304-05, 8 AD Cas. (BNA) 1093, 1110-11 (D.C. Cir. 1998) (the court, in interpreting a collective bargaining agreement provision authorizing reassignment of disabled employees, states that “[a]n employee who is allowed to compete for jobs precisely like any other applicant has not been “reassigned”); United States v. Denver, 943 F. Supp. 1304, 1310-11, 6 AD Cas. (BNA) 245, 250 (D. Colo. 1996) (the ADA requires employers to move beyond traditional analysis and consider reassignment as a method of enabling a disabled worker to do a job).

    Some courts have suggested that reassignment means simply an opportunity to compete for a vacant position. See, e.g., Daugherty v. City of El Paso, 56 F.3d 695, 700, 4 AD Cas. (BNA) 993, 997 (5th Cir. 1995). Such an interpretation nullifies the clear statutory language stating that reassignment is a form of reasonable accommodation. Even without the ADA, an employee with a disability may have the right to compete for a vacant position.

91. 29 C.F.R. pt. 1630 app. § 1630.2(o) (1997).

92. See US Airways, Inc. v. Barnett, 535 U.S., 122 S. Ct. 1516, 1524-25 (2002).

93. Id.

94. Id. at 1525. In a lawsuit, the plaintiff/employee bears the burden of proof to show the existence of “special circumstances” that warrant a jury’s finding that a reassignment is “reasonable” despite the presence of a seniority system. If an employee can show “special circumstances,” then the burden shifts to the employer to show why the reassignment would pose an undue hardship. See id.

95. Id.

96. Id. The Supreme Court made clear that these two were examples of “special circumstances” and that they did not constitute an exhaustive list of examples. Furthermore, Justice Stevens, in a concurring opinion, raised additional issues that could be relevant to show special circumstances that would make it reasonable for an employer to make an exception to its seniority system. See id. at 1526.

97. The discussions and examples in this section assume that there is only one effective accommodation and that the reasonable accommodation will not cause an undue hardship.

98. See Ralph v. Lucent Technologies, Inc., 135 F.3d 166, 171, 7 AD Cas. (BNA) 1345, 1349 (1st Cir. 1998).

99. For a discussion on ways to modify supervisory methods, see ADA and Psychiatric Disabilities, supra note 27, at 26-27, 8 FEP Manual (BNA) 405:7475.

100. See 29 C.F.R. § 1630.2(o)(1)(ii), (2)(ii) (1997) (modifications or adjustments to the manner or circumstances under which the position held or desired is customarily performed that enable a qualified individual with a disability to perform the essential functions).

101. Courts have differed regarding whether “work-at-home” can be a reasonable accommodation. Compare Langon v. Department of Health and Human Servs., 959 F.2d 1053, 1060, 2 AD Cas. (BNA) 152, 159 (D.C. Cir. 1992); Anzalone v. Allstate Insurance Co., 5 AD Cas. (BNA) 455, 458 (E.D. La. 1995); Carr v. Reno, 23 F.3d 525, 530, 3 AD Cas. (BNA) 434, 437-38 (D.D.C. 1994), with Vande Zande v. Wisconsin Dep’t of Admin., 44 F.3d 538, 545, 3 AD Cas. (BNA) 1636, 1640 (7th Cir. 1995). Courts that have rejected working at home as a reasonable accommodation focus on evidence that personal contact, interaction, and coordination are needed for a specific position. See, e.g., Whillock v. Delta Air Lines, 926 F. Supp. 1555, 1564, 5 AD Cas. (BNA) 1027 (N.D. Ga. 1995), aff’d, 86 F.3d 1171, 7 AD Cas. (BNA) 1267 (11th Cir. 1996); Misek-Falkoff v. IBM Corp., 854 F. Supp. 215, 227-28, 3 AD Cas. (BNA) 449, 457-58 (S.D.N.Y. 1994), aff’d, 60 F.3d 811, 6 AD Cas. (BNA) 576 (2d Cir. 1995).

102. See 29 C.F.R. § 1630.15(d) (1997).

103. See Siefken v. Arlington Heights, 65 F.3d 664, 666, 4 AD Cas. (BNA) 1441, 1442 (7th Cir. 1995). Therefore, it may be in the employee’s interest to request a reasonable accommodation before performance suffers or conduct problems occur. For more information on conduct standards, including when they are job-related and consistent with business necessity, see ADA and Psychiatric Disabilities, supra note 27, at 29-32, 8 FEP Manual (BNA) 405:7476-78.

     An employer does not have to offer a “firm choice” or a “last chance agreement” to an employee who performs poorly or who has engaged in misconduct because of alcoholism. “Firm choice” or “last chance agreements” involve excusing past performance or conduct problems resulting from alcoholism in exchange for an employee’s receiving substance abuse treatment and refraining from further use of alcohol. Violation of such an agreement generally warrants termination. Since the ADA does not require employers to excuse poor performance or violation of conduct standards that are job-related and consistent with business necessity, an employer has no obligation to provide “firm choice” or a “last chance agreement” as a reasonable accommodation. See Johnson v. Babbitt, EEOC Docket No. 03940100 (March 28, 1996). However, an employer may choose to offer an employee a “firm choice” or a “last chance agreement.”

104. See ADA and Psychiatric Disabilities, supra note 27, at 31-32, 8 FEP Manual (BNA) 405:7477-78.

105. See Robertson v. The Neuromedical Ctr., 161 F.3d 292, 296 (5th Cir. 1998); see also ADA and Psychiatric Disabilities, supra note 27, at 27-28, 8 FEP Manual (BNA) 405:7475.

106. While from an employer’s perspective it may appear that an employee is “failing” to use medication or follow a certain treatment, such questions can be complex. There are many reasons why a person would choose to forgo treatment, including expense and serious side effects.

107. See Vande Zande v. Wisconsin Dep’t of Admin., 44 F.3d 538, 544, 3 AD Cas. (BNA) 1636, 1639 (7th Cir. 1995).

108. See 29 C.F.R. pt. 1630 app. § 1630.9 (1997); see also House Judiciary Report, supra note 6, at 39; House Education and Labor Report, supra note 6, at 65; Senate Report, supra note 6, at 34.

     See, e.g., Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 165, 5 AD Cas. (BNA) 1653, 1659 (5th Cir. 1996); Tips v. Regents of Texas Tech Univ., 921 F. Supp. 1515, 1518 (N.D. Tex. 1996); Cheatwood v. Roanoke Indus., 891 F. Supp. 1528, 1538, 5 AD Cas. (BNA) 141, 147 (N.D. Ala. 1995); Mears v. Gulfstream Aerospace Corp., 905 F. Supp. 1075, 1080, 5 AD Cas. (BNA) 1295, 1300 (S.D. Ga. 1995), aff’d, 87 F.3d 1331, 6 AD Cas. (BNA) 1152 (11th Cir. 1996). But see Schmidt v. Safeway Inc., 864 F. Supp. 991, 997, 3 AD Cas. (BNA) 1141, 1146-47 (D. Or. 1994) (employer had obligation to provide reasonable accommodation because it knew of the employee’s alcohol problem and had reason to believe that an accommodation would permit the employee to perform the job).

     An employer may not assert that it never received a request for reasonable accommodation, as a defense to a claim of failure to provide reasonable accommodation, if it actively discouraged an individual from making such a request.

     For more information about an individual requesting reasonable accommodation, see Questions 1-4, supra.

109. See Question 5, supra, for information on the interactive process.

110. 29 C.F.R. pt. 1630 app. § 1630.9 (1997).

111. 42 U.S.C. § 12112(d)(3)(B), (d)(4)(C) (1994); 29 C.F.R. § 1630.14(b)(1) (1997). The limited exceptions to the ADA confidentiality requirements are: (1) supervisors and managers may be told about necessary restrictions on the work or duties of the employee and about necessary accommodations; (2) first aid and safety personnel may be told if the disability might require emergency treatment; and (3) government officials investigating compliance with the ADA must be given relevant information on request. In addition, the Commission has interpreted the ADA to allow employers to disclose medical information in the following circumstances: (1) in accordance with state workers’ compensation laws, employers may disclose information to state workers’ compensation offices, state second injury funds, or workers’ compensation insurance carriers; and (2) employers are permitted to use medical information for insurance purposes. See 29 C.F.R. pt. 1630 app. §1630.14(b) (1997); Preemployment Questions and Medical Examinations, supra note 27, at 23, 8 FEP Manual (BNA) 405:7201; Workers’ Compensation and the ADA, supra note 52, at 7, 8 FEP Manual (BNA) 405:7394.

112. The discussions and examples in this section assume that there is only one effective accommodation.

113. See 29 C.F.R. pt. 1630 app. §1630.15(d) (1996); see also Stone v. Mount Vernon, 118 F.3d 92, 101, 6 AD Cas. (BNA) 1685, 1693 (2d Cir. 1997) (an employer who has not hired any persons with disabilities cannot claim undue hardship based on speculation that if it were to hire several people with disabilities it may not have sufficient staff to perform certain tasks); Bryant v. Better Business Bureau of Greater Maryland, 923 F. Supp. 720, 735, 5 AD Cas. (BNA) 625, 634 (D. Md. 1996).

114. See 42 U.S.C. § 12111(10)(B) (1994); 29 C.F.R. § 1630.2(p)(2) (1997); 29 C.F.R. pt. 1630 app. § 1630.2(p) (1997); TAM, supra note 49, at 3.9, 8 FEP Manual (BNA) 405:7005-07.

115. See Senate Report, supra note 6, at 36; House Education and Labor Report, supra note 6, at 69. See also 29 C.F.R. pt. 1630 app. § 1630.2(p) (1997).

116. See the Appendix on how to obtain information about the tax credit and deductions.

117. See 29 C.F.R. pt. 1630 app. § 1630.15(d) (1997).

118. Failure to transfer marginal functions because of its negative impact on the morale of other employees also could constitute disparate treatment when similar morale problems do not stop an employer from reassigning tasks in other situations.

119. See Haschmann v. Time Warner Entertainment Co., 151 F.3d 591, 600-02, 8 AD Cas. (BNA) 692, 699-701 (7th Cir. 1998).

120. See Criado v. IBM, 145 F.3d 437, 444-45, 8 AD Cas. (BNA) 336, 341 (1st Cir. 1998).

121. The ADA’s definition of undue hardship does not include any consideration of a cost-benefit analysis. See 42 U.S.C. § 12111(10) (1994); see also House Education and Labor Report, supra note 6, at 69 (“[T]he committee wishes to make clear that the fact that an accommodation is used by only one employee should not be used as a negative factor counting in favor of a finding of undue hardship.”).

     Furthermore, the House of Representatives rejected a cost-benefit approach by defeating an amendment which would have presumed undue hardship if a reasonable accommodation cost more than 10% of the employee’s annual salary. See 136 Cong. Rec. H2475 (1990), see also House Judiciary Report, supra note 6, at 41; 29 C.F.R. pt. 1630 app. § 1630.15(d) (1997).

     Despite the statutory language and legislative history, some courts have applied a cost-benefit analysis. See, e.g., Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1184 n.10, 5 AD Cas. (BNA) 1326, 1335 n.10 (6th Cir. 1996); Vande Zande v. Wisconsin Dep’t of Admin., 44 F.3d 538, 543, 3 AD Cas. (BNA) 1636, 1638-39 (7th Cir. 1995).

122. See 42 U.S.C. § 12112(b)(2) (1994); 29 C.F.R. § 1630.6 (1997) (prohibiting an employer from participating in a contractual relationship that has the effect of subjecting qualified applicants or employees with disabilities to discrimination).

123. See 42 U.S.C. § 12203(b) (1994); 29 C.F.R. § 1630.12(b) (1997).

124. For example, under Title III of the ADA a private entity that owns a building in which goods and services are offered to the public has an obligation, subject to certain limitations, to remove architectural barriers so that people with disabilities have equal access to these goods and services. 42 U.S.C.

     § 12182(b)(2)(A)(iv) (1994). Thus, the requested modification may be something that the property owner should have done to comply with Title III.

125. US Airways, Inc. v. Barnett, 535 U.S., 122 S. Ct. 1516, 1523 (2002).

126. Id.

127. See Questions 5-10 for a discussion of the interactive process.