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Home > Employees > Reasonable Accommodation > Reasonable Accommodation Guide
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Reasonable Accommodation Guide
Why do I need to know about Reasonable Accommodations?
The Washington Law Against Discrimination (WLAD) and the Americans with Disabilities Act (ADA) require that an employer must reasonably accommodate a known disability of a qualified individual with a disability (satisfies the requisite skill, experience, education, and other job-related requirements of the position, and can perform the essential functions with or without a reasonable accommodation) unless the accommodations would result in undue hardship to the employer. The WLAD and the ADA differ on some elements of reasonable accommodation; the discrepancies are noted and each law’s requirements are provided.
What is a Reasonable Accommodation?
WLAD /ADA: The term reasonable accommodation means:
(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.
Examples of reasonable accommodations may include, but are not limited to:
(i) Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
(ii) Job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modifications of equipment or devices; appropriate adjustment or modifications of examinations, training materials, or policies; the provision of qualified readers or interpreters; and other similar accommodations for individuals with disabilities.1
When is an employer required to begin the process of providing a reasonable accommodation?
An employer must accommodate the known limitations of an otherwise qualified person with a disability. The WLAD and the ADA have two very different definitions of what it means for an employer to ‘know’ of an individual’s limitations:
WLAD: The duty of an employer to reasonably accommodate an individual’s known limitations does not arise until the employer is aware of the employee’s disability and physical limitations. Several Washington state cases and the 9th Circuit Court of Appeals have interpreted the WLAD as triggering the employer’s duties once it has knowledge that an employee has a condition that interferes with his ability to work, even if the employee has not requested an accommodation.2
ADA: Generally, the qualified individual with a disability must tell the employer about his or her disability and the need for an accommodation.3 Also, an employer will have ‘knowledge’ of a disability requiring an accommodation if such information is relayed to the employer by a third party. In order to request an accommodation, the qualified individual with a disability may use ‘plain English’ and is not required to mention the ADA, ‘disability’, or use the phrase ‘reasonable accommodation;’ the request need not be in writing.4 Equal Employment Opportunity Commission (EEOC) guidance requires the qualified individual with a disability to tell the employer that he or she needs an adjustment or change at work for reasons related to a medical condition.
For example, the EEOC indicates that there is sufficient notice to the employer if the employee says she needs time off work for treatment of a back condition. Conversely, the employer will not have sufficient notice of a need for an accommodation if an employee merely says that she needs a different chair because the one she is using causes her discomfort.
What is required of an employer when it has knowledge (based on the above criterion) of the known limitations of an individual?
The ADA and the WLAD both indicate that once an employer has knowledge or notice of the limitations of an otherwise qualified individual, or an employer recognizes that the otherwise qualified individual needs an accommodation but cannot request it because of a disability, the employer and such individual will enter into an “interactive process” where they cooperate to identify the limitations resulting from the disability and what accommodations may be reasonably made.5 The interactive process should include:
- Direct communication between the employer and employee to explore in good faith the possible accommodations.
- Consideration of the employee's request.
- Offering and accommodation that is reasonable and effective.6
The employer is entitled to know whether the individual needs an accommodation because of the disability. Accordingly, during the interactive process, if the need for an accommodation is not obvious, the employer may ask for reasonable medical documentation about the individual’s disability and functional limitations.7
What documentation may an employer require from an employee who requests a reasonable accommodation?
An employer may require an employee to provide documentation that is sufficient to substantiate that s/he has a WLAD/ADA disability and needs the reasonable accommodation requested, but cannot ask for unrelated documentation. Although the employer may require documentation, “in most situations an employer cannot request a person’s complete medical records because they are likely to contain information unrelated to the disability at issue and the need for accommodation.”8
In cases where a disability is not obvious, documentation is sufficient if it: (1) describes the nature, severity, and duration of the employee's impairment, the activity or activities that the impairment limits, and the extent to which the impairment limits the employee's ability to perform the activity or activities; and, (2) substantiates why the requested reasonable accommodation is needed. An individual may also be asked to sign a limited release allowing the employer to submit a list of specific questions to the individual’s health care or vocational professional.
May an employer require an employee to go to a health care professional of the employer's (rather than the employee's) choice when the employee requests a reasonable accommodation?
The WLAD and the ADA do not prevent an employer from requiring an employee to go to an appropriate health care professional of the employer's choice if the employee provides insufficient documentation from his/her treating physician (or other health care professional) to substantiate that s/he has a WLAD/ADA disability and needs a reasonable accommodation. However, if an employee provides insufficient documentation in response to the employer's initial request, the employer should explain why the documentation is insufficient and allow the employee an opportunity to provide the missing information in a timely manner. The employer also should consider consulting with the employee's doctor (with the employee's consent) before requiring the employee to go to a health care professional of its choice.9
Documentation is insufficient if it does not specify the existence of a WLAD/ADA disability and explain the need for reasonable accommodation. Documentation also might be insufficient where, for example: (1) the health care professional does not have the expertise to give an opinion about the employee's medical condition and the limitations imposed by it; (2) the information does not specify the functional limitations due to the disability; or, (3) other factors indicate that the information provided is not credible or is fraudulent. If an employee provides insufficient documentation, an employer does not have to provide reasonable accommodation until sufficient documentation is provided.10
Any medical examination conducted by the employer's health care professional must be job-related and consistent with business necessity. This means that the examination must be limited to determining the existence of an ADA disability and the functional limitations that require reasonable accommodation. If an employer requires an employee to go to a health care professional of the employer's choice, the employer must pay all costs associated with the visit(s).11
What is “reasonable?”
The WLAD and the ADA have somewhat different definitions of what constitutes ‘reasonable’ in terms of an accommodation – it seems that the WLAD may have a higher standard for showing that an accommodation is “reasonable” versus the ADA.
ADA: In 2002, the United States Supreme Court held that employers are entitled to a rebuttable presumption that an accommodation requested by a disabled employee under the ADA is unreasonable if it conflicts with seniority rules for job assignments. The Court decided that the proposed accommodation was not reasonable because it did not seem ‘reasonable on its face, i.e., ordinarily or in the run of cases.’12
The EEOC has stated that an employer has a duty to provide an accommodation that is effective (remove the work place barriers to allow the employee to perform the essential functions), not necessarily the accommodation the individual most wants or may be the “best” accommodation.13
Also, an employee may choose not to accept the accommodation; however, if he or she cannot perform the job without it, he or she will not be considered qualified pursuant to the ADA.14
WLAD: In order to be “reasonable”, an accommodation must be medically necessary.15 If an employee fails to provide a medical nexus between a disability and a need for accommodation, such accommodation is not medically necessary and unreasonable.16
The Washington State Supreme Court provided the following explanation of how “medically necessary” might be satisfied:
- An employee needs competent evidence establishing a nexus between the disability and the need for an accommodation. Such evidence will vary depending on how obvious or subtle the symptoms of the disability are.
- For an obvious condition, such as a broken leg, medical necessity burden is met upon notice to the employer, while in the cases of depression or PTSD, a doctor's note may be necessary to show some accommodation is medically necessary.
- "Medical nexus does not mean "therapeutically necessary," just that a connection exists between the condition and the need for accommodation."17
The court further stated that a medical necessity requirement “prevents employees from requesting accommodations based upon their own perception of a need for accommodation where there is no medical confirmation that such need exists."18
The Washington State Supreme Court and Washington State Appeals courts have consistently held that an employer is not required to offer the precise accommodation the employee requests; the employer has the ultimate discretion to choose between accommodations which would enable the employee to perform his or her job.19
How long does an employer have to respond to a reasonable accommodation request?
Although Washington State does not seem to have any guidance on this issue, the EEOC has stated that the employer’s response to a reasonable accommodation request should be “expeditious.” The amount of time it reasonably takes de | |