What Does Reasonable Accommodation Mean for Employers?
Tips on discrimination laws in the workplace
on January 20, 2023
Under the Americans with Disabilities Act of 1990 (ADA) and Illinois Human Rights Act (IHRA), employers can neither refuse to hire qualified individuals based on a disability nor refuse to provide a reasonable accommodation enabling the completion of essential job functions.
“The ADA stops the employer from assuming that, because of a disability, an individual cannot do the job,” says Heather Becker, an employment litigator at Laner Muchin in Chicago. “It goes even further [than hiring and accommodations], to really any employment action, they can’t discriminate.”
The IHRA essentially mirrors the protections of the ADA, but there’s a simple way to remember which takes precedence, says Kerryann Minton, an employment litigator at Michael Best in Chicago. “When both laws are applicable, the one with the greater protection for the employee will govern.”
While the ADA and IHRA promote equity in the workplace, determining the reasonability of an accommodation request is complicated, and no easy, one-size-fits-all answer exists.
The Crux of the ADA: Reasonable Accommodation
At the core of both laws lies the concept of reasonable accommodation, which Becker defines as, “some kind of alteration or change in the job that’s doable and would allow the individual to perform the essential obligations of the job.”
Case-by-case evaluations determine what accommodation is required, and these requirements may change over time. The need for a reasonable accommodation can “extend all the way to the very beginning of the application process,” Minton says. In fact, the accommodation process may even start before an application has been formally submitted.
It’s a broad term, as well. An accommodation’s appropriateness depends on “the particular circumstance of the position,” Minton says, and can include things such as “modified work schedules, short-term leaves, equipment or facility changes, policy adjustments, procedural changes, more frequent breaks, or, in some cases, reassignment to a different position.”
Reasonable accommodations allow employees to perform essential job functions, Minton adds, but do not excuse poor performance of those tasks. Some common accommodations include flexible leave, enhanced communication access and improved accessibility.
When determining an appropriate accommodation, Becker advises her clients to “talk to their employees about job duties,” rather than focusing on the disability itself.
Notably, as many offices have shifted to remote work arrangements, employers must remember that previously agreed upon in-office accommodations still apply.
An accommodation that places an undue hardship on an employer is not considered reasonable. The ADA defines undue hardship as “an action requiring significant difficulty or expense.”
The factors considered when assessing undue hardship, Minton says, can include: “the nature and net cost of the accommodation, the overall financial resources of the facility or covered entity, the type of operations at the covered entity, and the impact of the accommodations upon the operation of the facility.”
For example, Minton describes a situation in which an employee who is part of a three-person physical labor team requests a later start time. In that case, the impact on the other team members can constitute an undue hardship. Similarly, Becker says, “creating a job for someone or taking someone else out of a job to open it up for an employee with a disability” is not considered reasonable.
Minimizing Employer Risk
Becker advises her clients to create a policy prohibiting workplace discrimination based on a disability and to have an established process for the receipt and analysis of accommodation requests. Employers, she says, ought to “train managers and supervisors on how to talk to employees about these issues,” adding that confidentiality is of utmost importance.
Typically, employers learn of a disability when an accommodation is requested. Employers place themselves at risk if they try to diagnose workers, Becker says. When an employer suspects the presence of a disability that may affect job performance, she says the magic question to ask is: “Is there anything we can do to help you perform your job better?”
COVID-19 and Reasonable Accommodations
Both Minton and Becker noticed an increase in accommodation requests during the pandemic. Employers must remember that, while simple requests to work remotely do not involve the ADA, requests involving disabilities related to long COVID do. Minton recognizes the shifting nature of symptoms associated with long COVID can add uncertainty to the accommodation process and says, “Accommodating long COVID can feel like trying to hit a moving target.”