Insights

Devising Reasonable A.D.A. Accommodation Strategies

January 1, 1998

By: Brent T. Johnson

I. Introduction

The Americans with Disabilities Act of 1990 ("ADA") prohibits discrimination against qualified individuals with a disability with respect to job application procedures, hiring, advancement, termination, training, compensation, and other terms, conditions and privileges of employment. 42 U.S.C.S. § 12112(a) (1998). The ADA's definition of "discriminate" includes "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or an employee," unless the entity demonstrates that the accommodation would impose an undue hardship on the operation of the business. 42 U.S.C.S. § 12112(b)(5) (1998).

More specifically, the ADA requires reasonable accommodation in three areas of employment:1

This paper focuses on the second of these three types of accommodations under the ADA. Reasonable accommodation claims in these instances are brought based on the two "N"s -- notice and need. It is generally the obligation of the person with the disability to request a reasonable accommodation. However, once an individual in need (a qualified individual with a disability) requests accommodation, the employer must make a reasonable effort to provide that individual with an accommodation that is "effective for the individual." Americans with Disabilities Act of 1990, EEOC Technical Assistance Manual and Resource Directory (CCH) at III-9 (1992). The following discussion examines reasonable accommodation strategies to enable qualified individuals with a disability to perform the essential functions of a position held or desired by defining what is and is not reasonable accommodation, by providing suggested accommodation options, by updating the reader on case law developments interpreting "reasonable accommodation", and by exploring means of defraying the costs of accommodation. It concludes with ten suggestions for employers attempting to devise reasonable accommodation strategies.

• 1. To ensure equal opportunity in the application process (e.g., an applicant in a wheelchair needing accommodation if the interview site is not accessible);
  2. To enable a qualified individual with a disability to perform the essential functions of a position held or desired; and
  3. To enable an employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by employees without disabilities (e.g., equal access to lunch rooms, break areas, health programs, and social events). See Americans with Disabilities Act of 1990, EEOC Technical Assistance Manual and Resource Directory (CCH) at III-2 (1992).

II. What is "Reasonable Accommodation"?

Generally speaking, an employer must provide a reasonable accommodation to the known physical or mental disability of a qualified applicant or employee with a disability unless the accommodation would impose an undue hardship on the operation of the business. This requirement begs the question, "what is `reasonable accommodation'?"

A. Defining the Term.

1. Model Jury Instructions. The Model Jury Instructions from the Employment and Labor Relations Law Committee of the American Bar Association define "reasonable accommodation" as:

2. EEOC Guidance. The EEOC considers "reasonable accommodation" to be:

B. Examples of Accommodation.

• any effective modification or adjustment to the workplace that makes it possible for a person with a disability to enjoy the same benefits and privileges of employment that are available to any person without a disability. A reasonable accommodation need not be the best accommodation available, nor must it be the one actually requested by the employee. Under the Americans with Disability Act, the employer must provide a reasonable accommodation to the known physical or mental limitations of a qualified applicant or employee with a disability unless it can show that the accommodation would impose an undue hardship on the business. The obligation to provide a reasonable accommodation applies to all aspects of employment, and an employer cannot deny an employment opportunity to a qualified applicant or employee because of the need to provide reasonable accommodation. Instruction 1.106[3][b].

  a modification or adjustment to a job, the work environment, or the way things usually are done that enables the qualified individual with a disability to enjoy an equal employment opportunity. An equal employment opportunity means an opportunity to attain the same level of performance or to enjoy equal benefits and privileges of employment as are available to similarly-situated employees without a disability. Americans with Disabilities Act of 1990, EEOC Technical Assistance Manual and Resource Directory (CCH) at III-2 (1992).

  See also 42 U.S.C.S. § 12111(9) (1998) for examples of what "reasonable accommodation" may include.

  The following examples of accommodation should be evaluated as potential means for accommodating qualified individuals with a disability:

  1. Job Restructuring.

  • • (a) Reallocating or redistributing marginal job functions. However, employers are not required to restructure essential job functions.
      (b) Altering when or how an essential job function is performed.

2. Modified Work Schedules.

C. Five Tips on What is Not Reasonable Accommodation.

1. An employer's reasonable accommodation obligation applies only to accommodations which reduce barriers that are employment related to the employee's disability, not to accommodations requested for another reason. Thus, an employer who might be required to transfer a blind employee to a vacant position that does not require driving would not be required to transfer that same employee to a position out-of-state where the climate is more moderate. This latter "accommodation" would not be necessary because of the employee's disability. See Americans with Disabilities Act of 1990, EEOC Technical Assistance Manual and Resource Directory (CCH) at III-4 (1992).

2. A reasonable accommodation is not necessarily the best accommodation. So long as the accommodation gives the individual an equal opportunity in the application, performance or benefits and privileges of his or her job, it is reasonable. In illustration, an employer would not be required to hire a full-time reader for a blind employee if a co-worker could fill-in and read for the blind worker when necessary. Id.

3. An employer need not provide an accommodation if it is primarily for personal use. Reasonable accommodation only addresses workplace or employment barriers that stand in the way of providing qualified individuals with a disability an equal opportunity. Therefore, an employer who would not otherwise be required to purchase eyeglasses for an employee with a visual impairment might be required to purchase glasses that are specifically needed to use a computer monitor. Id. at III-5. Similarly, employers are generally not required to provide transportation to work; however, if the employer provides transportation, it must also arrange transportation accessible to persons with a disability.

4. Lowering performance standards and/or waiving warranted discipline is not required by the ADA. An employer may hold employees with disabilities to the same standards of production and performance as other similarly-situated employees in the performance of essential job functions, with or without reasonable accommodation. See 2 Employment Practices Guide (CCH) ¶ 4904 (1997). Therefore, employers should not abandon their policies, procedures and job expectations in the face of requests for reasonable accommodation. Relaxing performance standards and disciplinary procedures may result in inadequate documentation and unnecessary suspicion of legitimate employment decisions affecting a problem employee.

5. An employer is not required to remove or reallocate essential job functions. No accommodation is required under the ADA if the employee cannot perform the essential functions of the job with or without reasonable accommodation.

D. Case Law Developments Interpreting "Reasonable Accommodation."

1. Cases Finding for the Employer

(a) Siemon v. AT&T Corp., 117 F.3d 1173 (10th Cir. 1997). In Siemon, the Plaintiff had worked for Defendant AT&T approximately fifteen years when he was placed under a new supervisor, Lee Ann Fortune. The relationship between Plaintiff and Ms. Fortune was never good and deteriorated over a two year period. Plaintiff then took disability leave because of severe depression and anxiety he suffered from working under Ms. Fortune. AT&T offered Plaintiff a transfer to a different supervisor, but Plaintiff declined. Plaintiff asserted that his disability prevented him from working for Ms. Fortune, for Ms. Fortune's supervisor, or anywhere within either supervisor's chain of command because Ms. Fortune had "poisoned the waters." AT&T did not offer Plaintiff a position outside these supervisors' chain of command. Plaintiff took disability leave then brought suit alleging, in part, that AT&T's failure to provide a reasonable accommodation violated the ADA.

The Court focused on whether Plaintiff suffered a disability, because if he did not, AT&T's behavior would not be actionable under the ADA. The Court found that working is a "major life activity," but to demonstrate an impairment that substantially limits this activity, Plaintiff must show a significant restriction in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The Court held Plaintiff was not disabled under the ADA because he could perform a class of jobs or a broad range of jobs in various classes; his mental impairment merely prevented him from working under a few supervisors.

(b) Smith v. Midland Brake, Inc., 7 A.D. Cas. (BNA) 1560 (10th Cir. Mar. 13, 1998). Plaintiff Smith worked as a light assembler for Defendant-employer for approximately seven years. During this time, he experienced problems with chronic dermatitis on his hands and some muscular injuries. Plaintiff's physicians therefore placed restrictions on Plaintiff's work activities, and in a few instances, Plaintiff was ordered to stop working for limited periods. The Defendant assigned Plaintiff to duties within the light assembly department that involved less exposure to irritants and less lifting in an effort to accommodate Plaintiff's limitations. Nevertheless, Plaintiff took a leave of absence, and was subsequently terminated. Defendant claimed the basis for Plaintiff's termination was its inability to accommodate his skin sensitivity. Plaintiff brought suit alleging, in part, violation of the ADA. He also claimed Defendant had a policy of giving employees who became disabled and could not perform their positions priority over other employees for reassignment to open positions. Plaintiff alleged that under this policy and the ADA, Defendant was required to reassign him to another position outside the light assembly department.

The Court held that the ADA does not require reassignment when it is impossible to accommodate an employee in his current position. An employer may terminate an individual who can no longer perform the essential function of his or her job even with reasonable accommodation. In this instance, the Plaintiff did not allege he could perform the essential functions of his light assembly job. The Court therefore held that Plaintiff was not a "qualified individual with a disability" under the ADA and the Defendant was not obligated to reassign him. Further, without proof of discrimination under the ADA, the Defendant was free to disregard its internal policies of priority reassignment of disabled employees to vacant positions.

(c) Smith v. Ameritech, 7 A.D. Cas. (BNA) 917 (6th Cir. Nov. 20, 1997). In this case the Plaintiff was a traveling sales representative who sold advertising for the yellow pages. While traveling to meet a client, Plaintiff was involved in an automobile collision and suffered a herniated disc. Despite chronic back pain, Plaintiff continued working for six months, then took a disability leave of absence. During the leave, Plaintiff's physicians wrote to the Defendant-employer that Plaintiff was "totally disabled," and later, that he was fit only for the most sedentary type of employment. The parties agreed that Plaintiff was no longer qualified for his sales position and Plaintiff was subsequently terminated. However, while Plaintiff was on leave, he learned that an employee disabled by multiple sclerosis had been accommodated by reassignment to delinquent accounts collection, a position the employee could perform out of his home. Plaintiff filed suit alleging, in part, that Defendant failed to provide reasonable accommodation for his disability in violation of the ADA. The only accommodation Plaintiff proposed be made was working from his home.

The Court held that Plaintiff was essentially requesting two accommodations: a transfer to a new position and permission to work at home. However, Plaintiff did not present evidence that there was an opening for collections agent, and he therefore failed to show that either of the accommodations were objectively reasonable. Further, the ADA does not require employers to allow disabled workers to work at home where their productivity inevitably would be reduced. Addressing the employee afflicted with multiple sclerosis, the Court found that an employer who provides an accommodation that is not required by the ADA to one employee is not obligated to provide the same accommodation to other disabled employees.

(d) Gaul v. Lucent Technologies, Inc., 7 A.D. Cas. (BNA) 1223 (3rd Cir. Jan. 22, 1998). Plaintiff Gaul began work for the Defendant-employer in 1981. He was diagnosed as suffering from depression and anxiety-related disorders in March, 1984. Two years later he had a nervous breakdown and was hospitalized. After a few months off from work, Plaintiff returned and was eventually promoted. The next year, however, he suffered a relapse and went out on disability leave. He returned to work a second time in September, 1990. In December of that year, Plaintiff was assigned to work with a co-worker named Donovan Folkes. From the outset, the Plaintiff and Folkes had difficulty working together. According to Plaintiff, this relationship caused him constant stress. Plaintiff spoke to various supervisors and co-workers about his problems with Folkes. During one meeting with a Department Head, Plaintiff stated that he needed to be transferred to a lower-stress position or he was "going to pop." The Department Head did not follow-up on the transfer request and Plaintiff went out on disability leave two weeks later. Plaintiff filed suit alleging four causes of action, one for failing to accommodate his disability by transferring him away from an individual causing him stress.

The Court held that Plaintiff's request to be transferred from Folkes because of the prolonged and inordinate stress Folkes allegedly induced would impose extraordinary administrative burdens on the Defendant. Supervisors would have to consider Plaintiff's stress level in assigning projects to workers or teams, in changing work locations or in planning social events. Such consideration would require too much oversight. Further, the Defendant could at most achieve temporary compliance because compliance would depend upon Plaintiff's stress level at any moment, which, in turn, would depend on variables primarily out of Defendant's control. The Court also held that Plaintiff's request would require the Court to establish the conditions of his employment, but nothing in the ADA supported such an intrusion into "personnel decisions within an organizational hierarchy." The Court therefore ruled that Plaintiff's proposed accommodation was unreasonable as a matter of law.

(e) McCreary v. Libbey-Owens-Ford Co., 7 A.D. Cas. (BNA) 1115 (7th Cir. Dec. 18, 1997). In McCreary, Plaintiff was a production team member in the soldering department of Defendant's glass fabrication plant. His position required him to lift, bend and twist. Plaintiff suffered a back injury ("lumbosacral strain") while at work, and was returned to work with restrictions of no lifting over twenty pounds and no frequent bending, twisting or strenuous pushing and pulling. Plaintiff told Defendant's safety specialist that none of the work in the soldering department satisfied his restrictions or could be modified to meet his restrictions. Plaintiff was nevertheless returned to work in the soldering department. Plaintiff subsequently filed suit alleging Defendant failed to accommodate his disability by reassigning him to the less strenuous quality control department. Plaintiff demonstrated that he was qualified for a position in quality control by his testimony that he had worked in that department previously to the satisfaction of the Defendant.

The Court set forth an employer's obligations to provide accommodation by reassignment to a vacant position: an employer need only provide a reasonable accommodation, not necessarily the accommodation the employee requests; an employer need not bump another employee to create a vacancy; and an employer is not required to create a new position for the disabled employee. Further, the Plaintiff bears the burden of proving a vacant position exists and that he or she is qualified for that position. The Court then ruled that the Defendant did not fail to reasonably accommodate Plaintiff by not reassigning him to the quality control department because Plaintiff did not establish that a vacant position in that department was available. Plaintiff's only testimony was that he sometimes worked in the quality control department when there was no work in the soldering department. Occasional opportunities to work in another position do not establish a vacancy for a permanent position.

(f) Estate of Mauro v. Borgess Medical Center, 7 A.D. Cas. (BNA) 1571 (6th Cir. Feb. 25, 1998). 2 (The Plaintiff in this action died during the appeal to the Sixth Circuit, andhis estate was substituted as a party). William Mauro had worked for Defendant-employer as a surgical technician for two years when an anonymous call was placed to human resources informing Defendant that Mauro was infected with human immunodeficiency virus (HIV). Because of its concern that Mauro might expose a patient to HIV, Defendant created a new full-time position of "case cart/instrument coordinator," a position that eliminated all risks of transmitting the HIV virus. Mauro was then offered this position, but he refused. Defendant responded by creating a task force to determine whether an HIV-positive employee could safely perform the duties of a surgical technician. The task force concluded that a surgical technician could be required to place his or her hands into a patient's body cavity in the presence of sharp instruments and therefore, an HIV positive technician represented a direct threat to patient care and safety. Defendant again offered Mauro the coordinator position. He refused the position a second time and was laid off. Mauro then brought suit alleging violation of the ADA.

In its analysis, the Court focused on whether Mauro was "otherwise qualified" as a surgical technician. A disabled person is not "qualified" for a specific position if he or she poses a "direct threat" to the health or safety of others which cannot be eliminated by reasonable accommodation. Moreover, a person with an infectious disease who poses a significant risk of communicating an infectious disease to others in the workplace is not otherwise qualified to perform his or her job. Because Mauro's job duties would require him to have his hands in an operative site in the presence of sharp instruments, and incident reports demonstrated Mauro had been injured previously, the Court held that Mauro's continued employment was a direct threat and significant risk to the health and safety of others which could not be eliminated by reasonable accommodation. Accordingly, Mauro was not a qualified individual protected by the ADA.

(g) Jackson v. County of Los Angeles, 7 A.D. Cas. (BNA) 1256 (Cal.App. Dec. 19, 1997). The Plaintiff in Jackson was a "safety police officer" employed by the County of Los Angeles and stationed at the County Medical Center. He sustained injuries to his back, shoulder, and psyche while restraining a hyperactive patient. Plaintiff subsequently filed a claim for worker's compensation benefits for these injuries, but continued to perform his job without accommodation. In connection with his worker's compensation claim, Plaintiff underwent several physical examinations. In one examination it was determined that Plaintiff was disabled based solely upon work-related hypertension. Plaintiff was then issued a restriction of working in an environment free of emotional stress and strain, with no heavy work to fatigue him. Defendant decided that Plaintiff's work restrictions mandating a stress free environment precluded him from continuing to serve as a safety police officer and that there were no accommodations that would permit him to continue in that job. However, Defendant attempted to accommodate Plaintiff's restrictions by attempting to find Plaintiff another position at the Medical Center or within the department of health services. Defendant also provided Plaintiff vocational rehabilitation services, but Plaintiff withdrew from the program after a few weeks. He informed Defendant that the only position he would consider was that of safety police officer III. Plaintiff was therefore placed on a medical leave of absence. He filed suit alleging Defendant failed to accommodate his disability in violation of the ADA.
The Court, like the Court in Estate of Mauro, supra, focused its analysis on whether Plaintiff was a "qualified individual with a disability." The Court held that Plaintiff would have to prove he could perform the essential functions of a safety police officer with or without reasonable accommodation. However, in this instance, such a showing would be totally inconsistent with the position demonstrated during Plaintiff's worker's compensation proceeding. Plaintiff had admitted that all of the duties of a safety police officer involve stress. The Court therefore held that reasonable accommodation was not possible.

(h) Tenbrink v. Federal Home Loan Bank, 920 F.Supp. 1156 (D.C. Kan. Feb. 6, 1996). Plaintiff Tenbrink began working for Defendant in 1988. From August 1992 until March 1993, she requested and was granted leave without pay due to "illness". When she returned to work, she requested that her schedule be modified to accommodate her chronic fatigue syndrome. Defendant provided Plaintiff with part time employment. However, under Defendant's benefit package, employees working less than thirty hours per week were not entitled to employer-paid medical insurance. Plaintiff's medical insurance coverage was therefore terminated. She then filed suit alleging, in part, that Defendant's accommodation was defective because it failed to provide her with the benefits and privileges of employment equal to those enjoyed by nondisabled employees, namely paid medical benefits. Defendant responded by arguing that the ADA does not require employers to provide greater benefits to disabled employees than are provided to similarly situated employees who are not disabled. Therefore, Defendant argued, it should not be required to pay an employee who is reassigned to a lower position as a reasonable accommodation for a disability the salary or benefits of the former, higher position.

The Court found that Plaintiff had received the same benefits afforded non-disabled part time employees. Further, no evidence had been presented suggesting Defendant had discriminated against Plaintiff on the basis of her disability, or that Defendant did not provide coverage for its part-time workers merely to evade liability under the ADA. Therefore, the Court upheld summary judgment in favor of the Defendant.

2. Cases Finding for the Employee

(a) Fail v. Community Hospital, 946 P.2d 573 (Colo.App. 1997). Plaintiff Fail was working as a rehabilitation aide when she developed a hernia and injured her right knee. Despite surgery, Plaintiff's knee injury permanently limited her ability to walk and bear weight on her right leg. This restricted her ability to perform all the necessary duties of a rehabilitation aide. Plaintiff therefore requested a transfer to a vacant position in medical records which she was qualified for and could perform without accommodation. The records position was within the same pay grade as the aide position, but was a lesser pay "step" within the grade. Defendant had a policy that transferring employees were to be paid no higher than the sixth step when assigned to their new position. Plaintiff was being paid above the sixth step as an aide. While she was interviewing for the records position she learned of the pay decrease and discontinued the interview. She was subsequently terminated from her aide position. At the time of her termination, Plaintiff was qualified for and could perform without accommodation three like-graded positions, including the records position. However, she was not offered any of these vacant positions. She filed suit pursuant to the ADA alleging, in pertinent part, that Defendant had failed to offer her a reasonable accommodation.

The jury agreed, rendering a verdict in Plaintiff's favor and awarding her back pay, front pay, attorneys' fees and costs, interest, and $100,000 in punitive damages. The Defendant appealed and claimed that the Plaintiff was not entitled to be transferred to one of the vacant positions with her current rate of pay as an accommodation. The Court found that Defendant was essentially arguing that it need not have offered the available positions to Plaintiff as an accommodation because she was not "qualified" to transfer to those positions at a pay rate equal to that of an aide. The Court rejected the Defendant's argument as contrary to the purpose and language of the ADA, and affirmed the jury's verdict.

(b) Poindexter v. Atchison, Topeka and Santa Fe Railway Co., 975 F.Supp. 1387 (D.C. Kan. 1997). Plaintiff was an employee of Defendant Railway Company. She lived and worked in Kansas City. In 1993, Defendant eliminated numerous clerk positions (including Plaintiff's) in its Kansas City office. Defendant offered those employees a transfer to the Topeka office with a relocation compensation package. Plaintiff accepted the transfer and relocation compensation. However, Plaintiff elected not to relocate to Topeka; she chose to commute. She subsequently began suffering panic or anxiety attacks and depression, and claimed that this disability caused her to experience problems commuting. Plaintiff requested that Defendant accommodate her by moving her to a position in Kansas City. Defendant refused and Plaintiff took a medical leave of absence. Plaintiff then filed suit under the ADA, alleging that she was a qualified individual with a disability, that she had requested, but been denied a reasonable accommodation, and that the Defendant intentionally discriminated against her. The Defendant argued: (1) the Plaintiff failed to prove she was qualified to perform the essential functions of the job in Kansas City; (2) that payment of Plaintiff's relocation expenses constituted a reasonable accommodation; and (3) that Plaintiff's requested accommodation created an undue hardship because it violated the terms of the collective bargaining agreement. Plaintiff prevailed before a jury, and the Defendant appealed.

The Court held that the evidence supported the jury's finding that the Plaintiff could perform the essential functions of the Kansas City position. The Court further held that the provision of relocation expenses was conduct occurring before the onset of Plaintiff's disability and pursuant to an agreement between Defendant and the union; therefore, it did not constitute a reasonable accommodation. Finally, the Court ruled that Defendant failed to prove that the transfer Plaintiff requested violated the terms of the collective bargaining agreement. Therefore, the Court ordered Defendant reinstate Plaintiff in Kansas City, with seniority and fringe benefits from the date of her leave.

3. Other pertinent case law

(a) Oklahoma v. Busch, 919 P.2d 1114 (Okla. 1996). In Busch, Respondent was an attorney accused of various counts of professional neglect and misrepresentation. After a hearing on his alleged misconduct, the Professional Responsibility Tribunal recommended that Respondent be suspended for eighteen months, then subject to monitoring for his mental condition. Respondent alleged that he was disabled under the ADA because he suffered from Attention Deficit Disorder ("ADD"), and was entitled to reasonable accommodation. He urged that he be allowed to continue his practice subject to medication and supervision.
The Court held that the Oklahoma Bar Association, an arm of the Court, was subject to the ADA as a public entity. The Court also held that the Respondent's disability fell within the purview of the ADA. Nevertheless, the Court ruled that the ADA did not prevent the Court from taking disciplinary action against the Respondent since no reasonable accommodation could be made with respect to Respondent's actions which would maintain the integrity of the Bar and promote the public's confidence in the State's attorneys. Respondent's disability was, however, taken into account in the imposition of his discipline.

(b) Martin v. PGA Tour, 7 A.D. Cas. (BNA) 1514 (D.C. Ore. Feb. 20, 1998).3  Plaintiff Martin is a professional golfer whose right leg is atrophied because of circulatory deformity, making it difficult and painful for him to walk. Plaintiff sought accommodation under the ADA by use of a golf cart during PGA tournaments. The PGA contended that it was exempt from the ADA and that any modification of its rules which may be necessary to accommodate the disabled would fundamentally alter the nature of its tournaments.

• (a) Part-time work.
  (b) Flexible work hours.
  (c) Flexible work week.

  (a) Permitted use of accrued paid, advanced leave or unpaid leave for necessary treatment.
  (b) May be necessary for medical treatment of the disability, repair of equipment, or training on the use of assistive devices.

  4. Reassignment to a Vacant Position.

  5. Modifying Training Materials or Policies.

  6. Acquisition or Modification of Equipment or Devices.

  7. Provision of Qualified Readers and Interpreters.

  • 3. Flexible Leave Policies.

  • (a) Consideration of reassignment is only required for employees, not applicants.
    (b) Reassignment should be made to a position equivalent in pay and status to the position held if the individual is qualified and the position is vacant or will be vacant within a reasonable amount of time.
    (c) An employer can reassign to a lower-graded position if there are no accommodations which would enable the employee to remain in his or her current position and no equivalent positions vacant or soon to be vacant for which the employee is qualified.
    (d) An employer is not required to create a new job for an employee who can no longer perform the essential functions of his or her job.
    (e) An employer is not required to "bump" another employee from his or her position to allow reassignment. The ADA does not require an employer to reassign an employee to a position that is not vacant.
    (f) An employer is not required to promote an employee with a disability as an accommodation.

    (a) Altering leave policies or work hour schedules.
    (b) Modifying policies necessary to make an accommodation (e.g., allowing animals in the workplace as guide dogs).

    (a) TDDs.
    (b) Telephone amplifiers.
    (c) Electronic visual aids.
    (d) Braille devices.
    (e) Talking calculators.
    (f) Speaker phones.

• The Court found that the ADA applied and that consideration of the nature and extent of Plaintiff's disability was crucial to determining whether using a cart would afford him reasonable accommodation. The Court therefore considered Plaintiff's medical evidence, the fact that the Rules of Golf do not require walking, and that the PGA allowed cart use at two of its tournaments without handicapping or penalizing riders. The Court then held that the requested modification was reasonable "in the general sense, that is, in the general run of cases," given Plaintiff's disability.

III. The Cost of Reasonable Accomodation

Ultimately, litigating and satisfying any judgment in an ADA case will likely surpass the cost of reasonably accommodating a qualified individual with disability. When weighing the cost of reasonable accommodation, employers should therefore consider the following:

A. A reminder from Wal-Mart to keep your business out of court. In October, 1997, a federal jury in New Mexico found Wal-Mart had discriminated against a paraplegic by refusing to hire him. Over a 17-month period, the disabled applicant was refused employment at least six times and told there were "no openings for a person in a wheelchair." On one occasion, a Wal-Mart Manager told the applicant that he "already had one of his kind in the garden center." The applicant filed a charge with the EEOC and the Commission subsequently filed suit. The verdict against Wal-Mart was returned after less than two hours of deliberation. Wal-Mart was fined 3.5 million in punitive damages, $75,000 in compensatory damages, and $8,399 in back pay. EEOC v. Wal-Mart Stores, Inc., No. 94-1076 (D.C. N.M. Oct. 31, 1997). Don't let this happen to you!

• B. Undue hardship does not mean that the cost of an accommodation is high in relation to an employee's wage or salary. When enacting the factors for determining "undue hardship," Congress rejected a proposed amendment to the ADA that would have established undue hardship if an accommodation exceeded 10% of an individual's salary. American's with Disabilities Act of 1990, EEOC Technical Assistance Manual and Resource Directory (CCH) at III-5 (1992). Congress reasoned that such an approach would unjustifiably harm lower earning workers in need of accommodation. Congress therefore elected to focus the determination of undue hardship on an evaluation of the resources available to the employer. Accordingly, the Model Jury Instructions from the Employment and Labor Relations Law Committee of the American Bar Association define "undue hardship" as:

• significant difficulty or expense incurred by the defendant when considered in light of (1) the nature and net cost of the accommodation needed; (2) the overall financial resources of the defendant and the number of persons employed by the defendant; and (3) the type of the Defendant's business, including the composition, structure, and function of the Defendant's work force. Instruction 1.06[3][c].

In general, a larger employer with more resources would be expected to make accommodations requiring more effort and greater resources than would be required of a smaller employer with fewer resources. 2 Employment Practices Guide (CCH) ¶ 4904 (1997).

C. Financial Assistance to Employers. Financial assistance is available to employers to ease the cost of accommodating qualified individuals with disabilities. Employers should check with their accounting department, tax specialist, and/or their local IRS office regarding the following:

1. Tax credit for small businesses (Section 44 of the Internal Revenue Code). An eligible small business may take a tax credit of up to $5,000.00 per year for certain accommodations. The credit is available for one-half the cost of "eligible access expenditures" of more than $250, but less than $10,250.

2. Tax deductions for architectural and transportation barrier remover (Section 190 of the Internal Revenue Code). A full tax deduction of up to $15,000.00 per year is also available to employers for expenses of removing qualified architectural or transportation barriers.

3. Targeted job tax credits for employers who hire individuals with disabilities referred by state or local vocational rehabilitation agencies, State Commissions on the Blind, or the U.S. Department of Veteran Affairs, and certified by a State Employment Service.

4. Assistance from state or local rehabilitation agencies (e.g., U.S. Department of Veterans Affairs).

• See also 42 U.S.C.S. § 12111(10) (1998) (outlining factors to be considered in determining whether an accommodation would impose an undue hardship).

IV. Devising the Best Accommodation Strategies For your company - Ten Suggestions

Lawsuits have been and will likely continue to be brought against even the most careful employers. No employer can ensure that it will not be the next target of a lawsuit under the ADA. What it can do, however, is take certain steps now and in the beginning stages of any lawsuit or EEOC investigation to avoid or limit its liability. Most importantly, employers must understand the kinds of claims that can be brought, as discussed above, and avoid engaging in conduct which may give rise to a lawsuit or charge. In addition, the following ten suggestions should be considered by any employer devising reasonable accommodation strategies:

1. Implement a disability management program ("DMP"). DMPs are designed to prevent illnesses and injuries, to facilitate the return to productivity of an employee who has suffered an occupationally significant impairment, and to ensure compliance with the ADA and other federal and state laws addressing disabilities. DMPs may involve safety, wellness, and prevention programs. DMPs should also set forth strategies and a specific course of action for addressing illnesses and injuries immediately.

2. Train your employees. All employees, especially those in supervisory or managerial capacities, should be educated in the fundamental elements of the ADA. If your company implements a DMP or ADA-specific policy, train your employees in those policies as well. There is no substitution for good communication.

3. Analyze job functions sooner rather than later. Look at the particular job involved and determine its purpose and essential functions. A written job description is most helpful if it focuses on the results or outcome of a job function, not merely the way it is performed. Additionally, a written description with specific mention of which functions are essential can greatly assist an employer defending against an allegation that an employee could have performed some of the job functions, or at least all essential functions.

4. Involve your employees. Especially after a reasonable accommodation has been requested, employees' input and creativity may resolve the matter for less cost and effort than the employer anticipated. Weighing and implementing employees' suggestions also make employees feel like part of the solution and help maintain morale. Further, involving a qualified individual in the accommodation process may help the employer with cost issues. If an employer determines that the cost of reasonable accommodation would cause undue hardship and no funding is available from other sources, the employee should be offered the option for paying for the portion of the cost that would cause the employer and undue hardship. Americans with Disabilities Act of 1990, EEOC Technical Assistance Manual and Resource Directory (CCH) at III-16 (1992).

5. Consult with the individual requesting accommodation. Likewise, the employer should consult with the individual with a disability to find out his or her specific limitations and abilities as they relate to the essential job functions. The employer and employee can then work together to identify potential accommodations and assess how effective each choice might be to enable the individual to perform the essential job functions. Id. at III-9 - III-10. If more than one accommodation is feasible, the employer should weigh the employee's preference in choosing the accommodation selected. Id.

6. Document attempts to reasonably accommodate qualified individuals. You may even consider developing a checklist or worksheet to ensure uniform and consistent application of your accommodation efforts. Moreover, pursuant to 42 U.S.C. § 1981(a), an employer may avoid liability for compensatory and punitive damages under the ADA if it demonstrates it made good faith efforts, in consultation with the person with the disability, to identify and make a reasonable accommodation.

7. Revisit your policies frequently. Case law interpreting the ADA is constantly developing. Therefore, policies and determinations that were lawful one year may subsequently subject you to claims for failure to accommodate in violation of the ADA.

8. Build consensus whenever possible. Employers should consider forming committees to determine if reasonable accommodation can be made, and which job functions are essential to positions. This is especially important if the employer is establishing qualification standards to exclude an employee for health or safety reasons.

9. Review the terms of any collective bargaining agreements. A collective bargaining agreement ("CBA") may conflict with the type of accommodation necessary. For example, reassignment to lighter duty which would require seniority status under the company's CBA might be the only reasonable accommodation under the ADA. Employers finding the potential for such a conflict may want to negotiate the inclusion of a provision into CBA negotiated after the effective date of the ADA to allow the employer to take all actions necessary to comply with the law without unnecessary complication. CCH's Americans with Disabilities Act of 1990, EEOC Technical Assistance Manual and Resource Directory at III-16.

10. If your company is served with a lawsuit, do not panic, but take immediate action. An employer's counsel should be notified of any lawsuit or potential claim as soon as possible. Further, do not stop communicating with counsel after your initial contact. Updating your counsel on developments as they occur is crucial to effective representation and a positive outcome.

Footnotes:

• 1 This paper is limited to the obligations under the ADA of private employers with more than 15 employees; it does not address the obligations of places of public accommodation, commercial facilities, or state and local governments under the ADA.

• 2 See also 2 Employment Practices Guide (CCH) ¶ 4904 (1997), which states that the

• ADA permits employers to establish qualification standards that will exclude individuals who pose a direct threat . . . to the health or safety of the individual or of others, if that risk cannot be eliminated or reduced below the level of a `direct threat' by reasonable accommodation. However, an employer may not simply assume that a threat exists; [it] . . . must establish by medically supportable methods that there is a significant risk that substantial harm could occur in the workplace.

• 3 This case was brought as a public accommodation claim under Title III of the ADA; it did not involve private employment. Title III provides, in pertinent part, that "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation." 42 U.S.C.S. § 12182(a) (1998).

This Article is published for general information, not to provide specific legal advice. The application of any matter discussed in this article to anyone's particular situation requires knowledge and analysis of the specific facts involved.

Copyright © 1998 Fairfield and Woods, P.C., ALL RIGHTS RESERVED.

Comments or inquiries may be directed to:

Brent T. Johnson