More than 40 million Americans and 411,000 West Virginians have some kind of disability, whether physical, mental, sensory, or cognitive. At times, in order to effectively perform their jobs, these individuals may need some workplace adjustment or accommodation to maximize efficiency and productivity.
The duty to provide reasonable accommodation is a fundamental statutory requirement of The Americans with Disabilities Act of 1990 (the "ADA"). The ADA requires an employer to provide reasonable accommodation to qualified individuals (employees or employment applicants) with disabilities unless it causes undue hardship to the employer. "In general, an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities." 29 C.F.R. pt. 1630 app. § 1630.2(o) (1997).
There are three categories of "reasonable accommodations" under the ADA:
"(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."
Many individuals with disabilities can perform jobs without any reasonable accommodations. However, there are physical and non-physical workplace barriers which prevent others from performing jobs which they could adequately perform with some form of accommodation. Some examples of accommodations include increasing accessibility to workplace facilities, restructuring jobs, modifying work schedules, acquiring or modifying equipment, changing tests, training materials, or policies, providing interpreters; or reassignment to other positions.
Generally, an employee or job applicant with a disability must inform the employer that an accommodation is needed. According to the U. S. Equal Opportunity Commission (EEOC), an individual only has to let an employer know that an adjustment is needed at work for a reason related to a medical condition. Employees may use "plain English" and neither the ADA nor the phrase "reasonable accommodation" must be mentioned in the request.
A modification or adjustment is "reasonable" if it "seems reasonable on its face, i.e., if it appears to be "feasible" or "plausible." An accommodation must effectively meet the needs of the individual and enable the individual to perform the essential functions of the position. Employers do not have to provide "reasonable accommodations" that cause employers "undue hardship." However, rather than generalized conclusions, undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense. A determination of undue hardship should be based on several factors, including:
- the nature and cost of the accommodation needed;
- the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility;
- the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity);
- the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer;
- the impact of the accommodation on the operation of the facility.
If you are an employee that suffers from a disability and believe that your employer has failed to offer you reasonable accommodations for your condition as required by law, call Amy Crossan, an expert in employment law, for a consultation at 304.523.8451.