A common concern among employers is how to handle requests for accommodation by their employees. The types of accommodations may vary, but they are often religious or medical, and many times the request is not made in clear terms. While most employers are subject to federal laws such as the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964, they are unaware of how compliance with these regulations plays out in real-world circumstances. It is important to look at the process in steps to effectively manage it.
Step 1 - Be Aware of Potential Accommodations
Information that may trigger the need for an accommodation conversation may be disclosed in a casual manner, during a scheduled performance review, or even during the disciplinary process. Employees need not use the word “accommodation” or cite the law when asking for an accommodation, so employers should train their managers on language that may trigger the request. For example, someone may be falling behind on their work and telling their manager it is because their vision is poor and the computer screen is too small to read. This may trigger a discussion on ways to manage the issue – perhaps a larger computer screen would do the trick.
Step 2 - Identify that the Employee or Applicant is Otherwise Qualified for the Job
This may seem obvious, but it is important to be aware that nothing requires an employer to accommodate an employee’s or applicant’s need for an accommodation if the person would still be unable to perform the job even with the accommodation. For instance, if a company’s delivery driver is prescribed long-term medication that makes operating a motor vehicle unsafe, there would be nothing a company could offer to do that would make the driver qualified to perform their job again.
Step 3 - Request Documentation
While not required, requesting documentation to support the need for accommodation is certainly recommended. One benefit of requesting documentation for a disability accommodation is reducing fraudulent requests. If an employee is required to have a doctor sign off on the need for an accommodation, the employer generally will not have to be concerned with requests that are not truly related to a medical need. In addition, requiring the documentation of all employees (where the need is not already obvious) will ensure consistency of process and avoid any potential liability associated with an employer arbitrarily selecting who must show proof of need.
Requesting a doctor’s input also helps to ensure that the interactive process is efficient because the doctor may have suggestions for modifications based on the nature of the issue and the requirements of the job. It is important to note that you do not want to know all the details of someone’s medical situation, you simply want to verify that a need for accommodation exists and have enough information to be able to work with the employee in finding a solution.
For a religious accommodation, documentation becomes less important to validate the sincerity of the request, as it is generally a best practice to presume someone is sincere in their beliefs unless there is strong evidence to the contrary. However, asking the employee for a written attestation that they hold a religious belief that is conflicting with some aspect of the work environment or schedule - and what they are requesting to be done by the employer about it - is a good way to start that accommodation process. Of course, any conversations or documentation pertaining to medical or religious information should be handled by HR whenever possible and not the employee’s supervisor. All supporting documentation should be kept in a confidential file separate from the employee’s standard personnel file.
Step 4 - Determining What Is Reasonable
Once an employee has established that they have a need for accommodation, whether it be religious or medical, the next step is to engage the employee in the interactive process, which is essentially a discussion between the employee and employer about what could be changed to enable the employee to effectively do their job. The employer is not required to provide exactly what the employee asks for if there are less burdensome ways to achieve the goal. In addition, the employer is not required to offer an accommodation that would cause an undue hardship on the organization, as that would not be considered reasonable. While determining what constitutes an undue burden varies based on the facts and circumstances of each situation and should be considered carefully based on current business needs, the general idea under the ADA is that an employer is not obligated to provide a disability accommodation that would result in significant difficultly or expense.
For a religious accommodation, the burden of what is required - meaning reasonable - of an employer is less than the undue hardship standard under the ADA for a disability accommodation. A religious accommodation may be denied under Title VII if it creates more than a de minimis cost or burden for the employer. If a discussion with an employee identifies a change in the work environment that the employer is easily able to make that will also enable the employee to perform their job despite their religious limitation, the safest course of action is to incorporate that change. Any change can be implemented on a trial basis if the employer is unsure about the difficulty it will impose, and then it can be reassessed later.
Some examples of accommodating employee needs are giving flexible schedules or certain days off to attend medical appointments or religious services, allowing an employee with a back issue to use a standing desk, or rearranging some non-essential job functions that a disabled employee is unable to perform. It is worth noting that a leave of absence, which can generally be unpaid, can also be considered a reasonable accommodation and may even be required for employers that fall under the scope of the federal Family & Medical Leave Act (FMLA) or a state equivalent (whenever extended time off is needed due to medical reasons, the FMLA should always be considered).
When an employee identifies a need based on a medical condition or a religious belief, it is prudent for the employer to take time to discuss what the employee may need to be able to continue to do their job effectively, and make a good-faith effort to identify a way to accommodate them. Even if the employer is ultimately unable to offer an appropriate accommodation, they will be in a much more defensible position having documented their legitimate efforts to explore the options before coming to such a conclusion. However, in many cases, through the interactive process, employers are able to accommodate the needs of their employees and are able to retain productive and loyal workers.
As always, Adams Keegan is happy to discuss any specific questions you may have about accommodations in the workplace.