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The Equal Employment Opportunity Commission (“EEOC”) has issued a new Enforcement Guidance on Reasonable Accommodation, entitled “Reasonable Accommodation and Undue Hardship under the ADA” (the “Guidance”). The following discussion provides a brief overview of the information the Guidance provides on the following issues:

Requesting a Reasonable Accommodation

If the employer is unaware of an employee’s or applicant’s medical condition, the employee or applicant must let the employer know that she needs an adjustment or change at work for a reason related to that condition. However, there are no “magic words” that the individual needs to use. Indeed, she does not even need to mention the ADA. For example, an employee can effectively request a reasonable accommodation by telling her supervisor that she is having trouble getting to work because her medical treatments conflict with her starting time. By contrast, an employee who simply asks his supervisor for a new chair because he is uncomfortable is not sufficiently requesting a reasonable accommodation, because his request is not linked with a medical condition.

After receiving a request for a reasonable accommodation, the employer should discuss the situation with the individual to try to clarify the individual’s needs and the appropriate accommodation. The exact nature of the dialogue will vary based on the nature of the disability (i.e. whether it and the accommodation are obvious). If the employer fails to initiate or participate in an informal dialogue with the individual after receiving a request, and does not reasonably accommodate the employee, it may face liability.

As to documentation about the disability and functional limitations, the Guidance provides that an employer may request documentation if the employee’s disability and/or need for an accommodation is not obvious. The Guidance takes the position that if an individual’s disability or need for reasonable accommodation is not obvious and she refuses to provide the reasonable documentation requested by an employer (e.g., doctor’s verification of the need for the accommodation), then she is not entitled to the accommodation. Note that any request for documentation must be narrowly tailored to the disability and may not seek out other medical information unrelated to that disability or the need for accomodation.

Possible Reasonable Accommodations

The Guidance reiterates the long-standing rule that an employer is not required to provide the specific accommodation that the employee wants, so long as the employer chooses an effective accommodation. Also the employer cannot force the employee to take an accommodation, but if the employee’s failure to take an accomodation renders her not qualified for the job, the employer may act accordingly.

The Guidance gives examples of accommodations that may be reasonable, including: Making existing facilities accessible; job restructuring; part-time or modified work schedules; acquiring or modifying equipment; changing tests, training materials, or policies; providing qualified readers or interpreters; and reassignment to a vacant position. The Guidance also gives examples modifications or adjustments that are not reasonable accommodations: eliminating an essential function of the position or providing personal use items (prosthetic limb, wheelchair, eyeglasses, hearing aids, etc. if these items are also needed off the job). Further, employers do not have to make sure that an employee takes medication as prescribed and have no obligation to make sure that an employee is receiving appropriate treatment.

Disclosure

An employer may not tell other employees that an individual is receiving a reasonable accommodation, because the ADA specifically prohibits such disclosure of medical information. If asked about it, the employer should simply note that it is a private issue and the employer would keep the inquisitor’s private matters private as well.

Undue Hardship

With regard to undue hardship, the Guidance notes several factors to be used in the analysis of undue hardship, many of which are cost-oriented. However, the Guidance clarifies that that undue hardship is not determined by a cost-benefit analysis, because undue hardship depends on the employer’s resources–not on the individual’s perceived worth. Moreover, the EEOC takes the position that a reasonable accommodation does not necessarily cause undue hardship even if it violates a collective bargaining agreement (“CBA”). Instead, the employer, employee and bargaining representative must negotiate in good faith for an exception to the CBA that allows the employer to provide a reasonable accommodation.