Let’s start by stating the obvious – as an employer, you want to organize the work and treatment standards for your practice in the most efficient ways possible. Once well organized, a special request of any kind can be seen as a burden or treated with disdain because the truth is that no one loves it when someone asks for a unique accommodation.
As an employer, though, certain requests for accommodation from employees are governed by law. Among those laws, the most common accommodation obligations typically fall within, but are not limited to, requests related to medical conditions, pregnancy, and religious beliefs.
With that in mind, it can be stressful when an employee lets you know that they may need something changed about when, where, or how they do their job. It can literally feel like an unreasonable request because, well, it’s different and, frankly, we are all working as hard as we can to create consistent SOP’s and don’t have a ton of bandwidth to grant special requests.
When a request happens, the most common questions are:
- Do I have to accommodate?
- For how long?
- What must I do to navigate the process and ultimately provide the accommodation or possibly deny it?
Add to that, even if an employee does not create an official request, it is incumbent upon employers to recognize the need and be proactive in determining if and when an accommodation needs to be offered.
For example, imagine a pregnant employee is having trouble meeting some of the standard requirements of her job. Perhaps she is late more often than usual or is taking more bathroom breaks than normal and it is affecting her performance.
This is when understanding your obligations can really pay off. That’s because, when you broach these performance issues with this employee, you are also starting a very important course of action called the interactive process. Your ability to recognize and document that she may need an accommodation as a part of discussing her performance issues is key. We will discuss the value of documenting the interactive process throughout this article.
What are “reasonable accommodations”?
A “reasonable accommodation” is a change you make to job duties, the way duties are performed, or to the work environment to make it possible for a particular person to complete or perform the essential functions of their job.
An accommodation is considered “reasonable” so long as it doesn’t create an “undue hardship” for your business. Note that the bar for establishing that a request cannot be granted based on “undue hardship” is very high. So high, in fact, as to be almost unreachable. It’s a unicorn.
Types of Accommodations
Reasonable accommodations can take many forms. Some examples include:
- Providing extra breaks
- Providing extra unpaid time off
- Permanently or temporarily modifying an employee’s job duties
- Reassignment of duties
- Providing a specific piece of equipment
- Modifying equipment
- Providing an exam, application, or training materials in alternative formats
- Modifying dress codes or grooming standards (especially in the case of religious accommodations)
- Making existing facilities more accessible and usable to an employee
When are reasonable accommodations legally required?
The laws that govern who is covered and what you need to know as an employer are first addressed in federal law. Additionally, MANY states and some cities have added protections and categories to the mix by writing in more protections or lowering the federal standard for the number of employees you must have in order for the law(s) to apply to you.
HR Law Reminder: Most employment laws contain two factors when it comes to who the rules apply to. Factor #1 is the number of employees you need for the law to apply to you. Factor #2 typically includes how the law will be applied to you once you are subject to it.
Covered employers are required to provide reasonable accommodations when requested by employees with qualifying disabilities, sincerely held religious beliefs, and pregnancy. The accommodations can be temporary or, in some cases, permanent.
It’s very important to note that, just because an employee asks for a specific accommodation or set of accommodations, it does not mean that they will ultimately be entitled to receive them exactly as requested. The interactive process often ends up helping both parties come to a set of reasonable middle-ground solutions where there is some give and take. Further, when documented properly, the process serves as a record of your bonafide attempt to provide accommodations in one form or another.
Here are a few of the federal rules that apply to you if you have 15 or more employees:
- The Americans with Disabilities Act (ADA) makes it illegal for employers to discriminate against employees or job applicants because they have a qualifying disability.
- Title VII of the Civil Rights Act makes it illegal for employers to discriminate against employees or job applicants based on religion.
- The Pregnancy Discrimination Act makes it illegal for employers to discriminate against employees or job applicants on the basis of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.
While all of those federal laws apply to employers with 15 or more employees, many states and localities across the US have similar laws that apply to smaller businesses with as few as one employee.
If you have 15 or more employees, or your business is located in a state or locality with its own rules, then you are best served to engage in an “interactive process” with protected employees or job applicants in order to determine what sort of accommodation(s) you may be able to provide whenever such an employee requests an accommodation from you or you become aware that an accommodation is likely needed.
The Interactive Process
When an employee or applicant requests a change to their job duties or the work environment for a legally protected reason, employers must engage in a cooperative dialogue with the employee. This dialogue is what’s known as the “interactive process.”
The process itself provides critical documentation that outlines what was requested. It should also include certifications and more details from the employee’s healthcare provider(s).
Note that, while you do want to expeditiously respond to accommodation requests, you do not have to provide accommodation as soon as it is requested. Rather, the interactive process will give you the opportunity to work with your employee to determine which, if any, accommodations might be best suited for both the employee and your business.
Important note: Remember to keep records of all communication that takes place during the interactive process to demonstrate your efforts to comply with applicable laws.
Here are some of the steps involved in the interactive process:
Note that this process is specific to addressing accommodation requests for disabilities and will be slightly different for employees requesting accommodations for their religious beliefs. Ultimately what you want to know is what, when, and how long the requested accommodations are going to last.
- Provide a letter, a copy of the employee’s current job description, and an accommodation request form to the employee: The letter you provide the employee will request that the employee take the accommodation request form and job description to their healthcare provider so that they can provide their opinion as to what, if any, accommodation might be needed to enable the employee to perform the essential functions of their job. If this disability or pregnancy-related medical condition is obvious or has already been verified, you may be able to work directly with the employee to complete the interactive process.
CEDR Members: Reach out to the Solution Center for a template request form and for help drafting this letter.
- Collect and review the accommodation request form: Once the employee or their healthcare provider have let you know whether or not an accommodation is required (the doctor may actually say that no accommodation is needed), review all options available to you to help meet the employees needs.
- Determine if any of the potential accommodations are reasonable: Assess each possible accommodation to determine which would work best for you and the employee. This involves determining whether or not implementing any of the available accommodations would meet the threshold for “undue hardship”.
CEDR Members: Reach out to the Solution Center and an HR expert will help walk you through this process.
- Provide or deny the accommodation: Once you and the employee have agreed on an accommodation, it’s time to implement it. Once the accommodation is in place, your employee will be expected to perform the duties of their job just as anyone else in the position without a disability would. If all possible accommodations are determined to be unreasonable (remember, this is generally a very difficult threshold to meet), then you may deny the accommodation. A word of warning, though: you should NEVER deny an accommodation to an employee that qualifies for one without first consulting with an HR expert to ensure you are doing so legally and without putting your business at risk!
What constitutes an “undue hardship” to my business?
The only time it is legal for an employer who is subject to the federal disability laws to deny a request for reasonable accommodation is if providing any of the possible accommodations would cause the business “undue hardship.” It’s essential to keep in mind, though, that the fact that your business may incur some costs or face some challenges in order to provide an accommodation does not automatically constitute an “undue hardship.”
According to the EEOC:
Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer’s size, financial resources, and the nature and structure of its operation.
Unfortunately, the use of the word “significant” here is, well, significant. Historically, being able to show that an accommodation would cause “undue hardship” has proven to be a very high bar for employers in court. With that in mind, instead of trying to prove undue hardship, let’s take a deeper dive and define the accommodation process and how it can work out for everyone.
What if I am not “required” to interact or grant an accommodation?
If you are not required by federal, state, or local laws, it’s still a good idea to engage in the interactive process with employees whenever possible. The interactive process is a commonsense approach that can help you and your team members find common ground. It helps them continue to do a great job while you get to keep a great-performing employee.
While you may not be required to do so by law, you may still want to grant reasonable accommodations on a temporary basis because it is the right thing to do and will help you retain a good employee.
If you have questions on this or any HR Topic and can’t dedicate the hours it would take to learn all of the subtleties of employment law in order to quickly deal with complex HR issues like accommodations as they arise, we can help. Learn more about CEDR’s support here.
Don’t Force Accommodations on Your Employees
As an employer, do not preemptively force an accommodation on an employee because you think they may be eligible to request one.
Examples of forcing an employee to take an accommodation before they ask you for one include:
- Reassigning a pregnant employee to prevent them from coming in contact with potentially hazardous chemicals
- Placing an employee on leave because you don’t think they should be working anymore
- Passing over an employee for a promotion or important work because they have family obligations.
Forcing an employee who is pregnant, disabled, or otherwise in a protected class into an accommodation they didn’t ask for is a form of discrimination, even if your intention is simply to protect the employee.
Rather, you should treat all employees fairly and consistently and allow anyone who believes they might need an accommodation to request one from you.
Say you notice that an employee is struggling with one or more of their job duties and you believe those difficulties may be the result of a medical issue.
Avoid the temptation to jump to conclusions and do not ask the employee if they have a disability! During a one-on-one or a feedback session, address the problem behavior you have observed by citing objective facts about the situation: “We’ve noticed you are late in the mornings more than usual, are sort of away from your work a lot, and you seem to be distracted and not available some of the times when we need you. What’s going on?”
If the employee informs you that the problem is the result of a disability, pregnancy, or a medical condition – in this case, it may turn out that they are, in fact, experiencing some of the normal side effects of being pregnant, such as morning sickness – the interactive process has already begun! Now you can move on to identifying ways to accommodate while still requiring the employee to carry out their duties to the best of their ability with accommodations in place.
Employees that have a qualifying disability, medical condition, or who hold a sincere religious belief are protected from discrimination by law. Federal discrimination laws apply to employers with 15 or more employees, though smaller businesses in a number of states and localities are subject to similar and sometimes more strict discrimination laws that apply to you even if you have just one employee. And, even for employers that are not covered by these laws, engaging in an interactive process with employees who express a potential need for an accommodation is highly recommended.
If you’re not sure how the laws apply in your state or would like to talk through the interactive process with a qualified HR professional, contact the CEDR Solution Center today.
Employers that are subject to discrimination laws are required to engage in an interactive process with protected employees who request an accommodation so that they may fulfill their job duties, enjoy the benefits of employment, or apply for a job. Engaging in the interactive process allows employers to determine if providing an accommodation is necessary, and to see what, if any, reasonable accommodations may be offered. Documenting that process is key.
For an employer to deny an accommodation, all available options must be “unreasonable”, meaning that they would require “significant difficulty or expense” for the employer to implement. The bar for an accommodation to qualify as creating “undue hardship” is very high, however, and can be extremely difficult to prove. Just because a potential accommodation will incur a cost or be an inconvenience does not mean that is “unreasonable.”
Don’t force accommodations on employees. But, once they are requested for a protected reason, it is always in your best interest to provide one if you are able to do so.
Whenever an employee requests an accommodation, make sure you document the entire process to ensure you remain in compliance with the law. And, as with any other complex team management issue, reach out to a qualified HR professional to make sure your bases are covered along the way.