The Catholic University of America

ADA Guidelines

Reasonable Accommodation/Employment

Reasonable Accommodation/Employment
Definition
Leave of Absence
Transfer to a Vacant Position
Auxiliary Aids and Services
Physical Facilities
Other Examples of Reasonable Accommodation
Union Issues
Confidentiality
When Reasonable Accommodation is not Required
Undue Hardship
Direct Threat to Health or Safety

The employment provisions of the ADA require an employer to reasonably accommodate an otherwise qualified applicant or an employee with a disability unless the employer can prove undue hardship or a threat to safety. What constitutes an appropriate accommodation will be determined on a case-by-case basis by the university, utilizing input from the affected employee whenever possible. The employer is only required to accommodate a "known" disability of a qualified applicant or employee.

Definition: A reasonable accommodation is any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. Reasonable accommodation also includes adjustments to assure that a qualified individual with a disability has rights and privileges in employment equal to those of employees without disabilities.

Leave of Absence: A leave of absence may be considered a reasonable accommodation for an employee. Consideration of whether or not to grant such a leave should include a review of CUA's Sick Leave Policy, as well as a review of whether the leave might be more appropriately considered Family and Medical Leave. Collective bargaining agreements should also be consulted where relevant. Granting the leave is not necessary if it would be considered an undue hardship for the university. Contact the Office of General Counsel for guidance on this issue.

Transfer to a Vacant Position: Reassignment to a vacant position is listed in the regulations as a possible reasonable accommodation, but courts have not always required same. On October 12, 2002, the EEOC issued a revised Enforcement Guidance entitled: Reasonable Accommodation and Undue Hardship Under the ADA that addressed this question.

The 1999 guidance must be read as modified by the Supreme Court decision in U.S. Airways v. Barnett. The Barnett case involves a nuanced reading of the statement in the ADA that reasonable accommodation may include "reassignment to a vacant position. The question before the Court was whether the ADA requires reassignment of a disabled employee to a vacant position when such reassignment is in conflict with a seniority system. The Supreme Court held that an employer's showing that a requested accommodation conflicts with seniority rules is ordinarily sufficient to show, as a matter of law, that an "accommodation" is not "reasonable". However, the employee remains free to present evidence of special circumstances that makes a seniority rule exception reasonable in the particular case.

The Supreme Court has stated that "[e]mployers cannot deny an employee alternative employment opportunities reasonably available under the employer's policies, but they are not required to find another job for an employee who is not qualified for the job he or she was doing." School Board of Nassau County v. Arline, 480 U.S. 273, 289, n. 19 (1986). If the employer has a practice of maintaining salaries for reassigned employees, then of course this practice must be applied to disabled employees as well. Employers need not offer reassignment to applicants.

Auxiliary Aids and Services:

For those with hearing impairments, examples are:

  • qualified notetakers;

  • computer-aided transcription services;

  • written materials;

  • telecommunications devices for deaf persons (TDD's); and/or

  • videotext displays.

For those with vision impairments examples are:

  • qualified readers;

  • taped texts;

  • audio recordings;

  • Braille materials; and/or

  • large print materials.

Once an employee has requested such an accommodation, it should be reviewed with the university's ADA Coordinator. If provision of a particular auxiliary aid or service would result in a undue hardship on the operation of the employer's business, the university should provide an alternative auxiliary aid or service if one exists. Examples of other auxiliary aids or services may be obtained from the ADA Coordinator or from the Office of Disability Support Services.

Physical Facilities: The university must remove architectural barriers in existing facilities, including communication barriers that are structural in nature, where such removal is readily achievable. Examples are:

  • installing ramps;

  • making curb cuts in sidewalks and entrances;

  • rearranging furniture or repositioning shelves;

  • repositioning telephones;

  • adding raised markings on elevator control buttons;

  • installing flashing alarm lights; and

  • widening doorways.

Other Examples of Reasonable Accommodation: Accommodation may include providing personal assistants to help with specified duties related to the job; job restructuring that includes changing how or when an essential function is performed; the reallocation or redistribution of non-essential, marginal job functions; part-time or modified work schedules; appropriate adjustment or modification of examinations, training materials or policies; and other similar accommodations.

Union Issues: When a union is involved, the employer must negotiate with the union over any reasonable accommodation that effects a material, substantial or significant change in working conditions. (This is the position taken by the National Labor Relations Board.) The employer should be careful not to disclose to the union confidential medical information without the employee's consent.

Confidentiality: An employer should not tell employees whether it is providing a reasonable accommodation for a particular individual. In response to coworker questions, the employer should respond that it is acting for legitimate business reasons. The employer may request documentation about the disability when the need for accommodation is not obvious.

When Reasonable Accommodation is not Required

Undue Hardship: An employer need not provide reasonable accommodation if it would impose undue hardship on the employer. Undue hardship refers to any accommodation that would be unduly costly, expensive, substantial or disruptive, or that would fundamentally alter the nature or operation of the business. A claim of undue hardship will be analyzed in light of the employer's size and financial resources. Even if an undue hardship exists, the employer must pay for the portion of the accommodation that would not cause an undue hardship if other funding sources will pay for the remainder of the accommodation. See the 2002 EEOC Revised Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA. Note the Supreme Court decision (Barnett) mentioned above.

Direct Threat to Health or Safety: An employer is not required to employ an individual who poses a direct threat to the health or safety of self or others, and who cannot perform the job at a safe level even with reasonable accommodation. In determining whether an individual poses a significant risk of substantial harm, the employer must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or the best available objective evidence, to ascertain:

  • the nature, duration, and severity of the risk;

  • the imminence of the risk;

  • the probability that the potential injury will actually occur; and

  • whether reasonable modification of policies, practices, or procedures will mitigate the risk.

This standard should be applied to all individuals, not just disabled individuals. Consideration must also be given to whether or not hiring or retaining the individual might expose the employer to a claim of negligent retention or hiring should injury occur. A case to know about in the health or safety context is the 2002 Supreme Court decision in Chevron U.S.A. Inc. v. Echazabal. In that case the Court upheld an EEOC regulation allowing an employer to include a requirement that an individual shall not pose a direct threat to the health or safety of the individual or others in the workplace.

Contact the Office of General Counsel for guidance in this area.

Updated 10-22-02 to add Chevron and Barnett cases.

Source: 29 C.F.R. § 1630.2.

29 CFR § 1630.15(b)(2)





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