Ask About the ADA

Reasonable Accommodations for Primary Caregivers

Q: My son has a disability. The place where I work has me park my car about 3 miles away and ride a shuttle into work. This has significantly restricted my ability to get to my car quickly should an emergency arise with my disabled son. I have brought it up several times with human resources that it is imperative I have quick and complete access to my car for getting to my son. What recourse do I have? Do they need to accommodate me?

A: A person who is a primary caregiver to a person with a disability would not be eligible for a reasonable accommodation under the Americans with Disabilities Act (ADA). Title I protections are for the employee or applicant with a disability who may need an accommodation so that they can effectively work and perform their essential job functions. Title I does not extend to cover family members with disability related needs.

Requests for Telework

Q: How does an individual advocate for an accommodation request such as telework when the employer says they can't do that if others do not have the same opportunity. Meaning, they do not have a telework policy and they refuse to allow the individual that accommodation because others are not allowed to take advantage of telework?

A: Knowing their own rights and responsibilities as well as an employer's rights is essential for a person to be able to advocate for themselves. If an employee is working for an employer who refuses any telework, then he or she could share guidance from the Equal Employment Opportunity Commission (EEOC) with their employer. If this is not helpful and the person feels that she is being discriminated against, then she can file a complaint with the EEOC by calling 800-669-4000.

On the matter of EEOC's guidance on telework, the agency has issued guidance, Work at Home/Telework as a Reasonable Accommodation.

It's worth highlighting two parts of this guidance as a starting point for a conversation. First, its introductory paragraph:

Not all persons with disabilities need - or want - to work at home. And not all jobs can be performed at home. But, allowing an employee to work at home may be a reasonable accommodation where the person's disability prevents successfully performing the job on-site and the job, or parts of the job, can be performed at home without causing significant difficulty or expense.

And second:

May permitting an employee to work at home be a reasonable accommodation, even if the employer has no telework program?

Yes. Changing the location where work is performed may fall under the ADA's reasonable accommodation requirement of modifying workplace policies, even if the employer does not allow other employees to telework. However, an employer is not obligated to adopt an employee's preferred or requested accommodation and may instead offer alternate accommodations as long as they would be effective.

So, in order to advocate for their reasonable accommodation, an employee with a disability has to learn and know what might potentially be reasonable as an accommodation. This means balancing what is needed to allow the employee to do their essential job functions with what would represent an undue hardship for the employer. Notably in the case of telework is the fact that the EEOC has indicated that an employer's general no telework policy is not sufficient in itself to deny such a reasonable accommodation request.

Information Requests When Seeking a Reasonable Accommodation

Q: Can you give an example of the type of information an employer may ask, or an employee may have to share when there is a request for reasonable accommodation?

A: During a request for reasonable accommodation, an employer might ask for information about the nature of the employee's disability and how it impacts the person; specifically in reference to the accommodation request. Most often, this is related to some specific job tasks. It's important to keep in mind that the same disability can affect individuals in very different ways.

For example, two employees may both have low vision. However, one individual may not be able to read standard print while another can read print but may not have any peripheral vision. The type of accommodation needs for each will be different based on their disability as well as the kind of work tasks that they do.

In the process of gathering information, the employer has a right to know the relevant information, but they cannot "fish" for additional information or ask medical questions that are not related to the accommodation request. Depending on the employer and the nature of the request, this information may need to come from a doctor or professional. An employer can insist that their doctors be used to verify the information, but then the employer must assume the cost. If the employer allows the individual to use their own doctors or professionals, then the individual would cover the cost of gathering the necessary documentation.

Beyond the medical documentation verifying the disability and need for accommodation, both sides should share information about potential accommodation solutions. Usually, the person making the request has specific accommodations in mind. The Job Accommodation Network has many good resources to learn about possible accommodations. Ultimately, the employer gets to decide the accommodation, but it must be effective and meet the employee's need if an accommodation can be provided without undue hardship.

Service Animals in Churches

Q: Is it illegal for a church to deny entry to a person with a service dog?

A: No, religious entities are completely exempt from Title III of the Americans with Disabilities Act (ADA). All of their facilities, programs, and activities, whether they are religious or secular in nature, are exempt.

It is important to check any state/local laws to see if there are any protections that go beyond the ADA in terms of access in this regard.

Job Coaches as a Reasonable Accommodation

Q: I am a vocational rehabilitation counselor. A large sized retail store told me that due to COVID-19 restrictions, they cannot accept any job applicants who will need a job coach as a reasonable accommodation. Is this permissible?

A: No. An employer cannot eliminate an entire class of reasonable accommodation regardless of COVID-19 limitations. That being said, they may set restrictions as to the job coach being required to wear a facemask and to follow any workplace health and safety protocols that are in place.

The store might claim that permitting the job coach creates an undue hardship – in this case an administrative burden – with the argument being that they can’t have more than a certain specified number of staff in the store at any time, and they can’t operate with less than that number of staff. BUT, as the space is open to the public because it is a retail environment, the store could limit the number of customers in the store at any one time to accommodate the extra person (the job coach).

Regardless, the store cannot proscribe all job coaches without an individual assessment of an accommodation request and a fact-based examination of evidence.

The EEOC recognizes that some accommodations may need to be denied because of undue hardship due to COVID-19, but that is in limited circumstances.

In the Equal Employment Opportunity Commission's (EEOC) document, What You Should Know About COVID-19 and The ADA, The Rehabilitation Act, and Other EEO Laws, the EEOC states the following:

D.10. What types of undue hardship considerations may be relevant to determine if a requested accommodation poses "significant difficulty" during the COVID-19 pandemic? (4/17/20)

An employer may consider whether current circumstances create "significant difficulty" in acquiring or providing certain accommodations, considering the facts of the particular job and workplace. For example, it may be significantly more difficult in this pandemic to conduct a needs assessment or to acquire certain items, and delivery may be impacted, particularly for employees who may be teleworking. Or it may be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to readily hire temporary workers for specialized positions. If a particular accommodation poses an undue hardship, employers and employees should work together to determine if there may be an alternative that could be provided that does not pose such problems.

So, the retail store should engage individuals who request a job coach on a case-by-case basis to determine if it would be an undue hardship. If the store believes that it would pose a direct threat to allow a job coach on site, then they must conduct a careful individualized fact-based examination of any increased risk as well as if those risks could be reduced or eliminated.

Title I and Production Quotas

Q: I am legally blind, and my workplace has a daily production percentage. I have the same daily percentage as employees without disabilities and if I do not reach the standard percentage, I could be fired. Is that legal or can the ADA protect me?

A: Under the Americans with Disabilities Act (ADA), an employer is required to work with an employee to determine whether an accommodation could be made to assist the individual with meeting the essential functions of the job. However, there is no obligation for employers to lower production or quality standards for disability related reasons. The employer must be consistent in applying a uniform minimum production standard for all employees in the same job positions.

US Citizens in Foreign Universities

Q: I attend a college that is not based in the United States, but it has an office in New York. Are they required to follow the ADA and provide me with reasonable accommodations for school?

A: Colleges that are based and operate in countries other than the United States are not required to adhere to US laws like the Americans with Disabilities Act (ADA). However, the office in New York would need to follow ADA guidelines in areas such as accessible design and effective communication.

Voluntary Disclosure of Disability

Q: I am a cancer patient in remission for Acute Promyelocytic Leukemia. I have recently been applying to jobs (post cancer diagnosis) and I am confused what I should be answering regarding the voluntary disclosure of a disability. Mostly, is my form of cancer (which could reoccur) considered as me having a history of a disability?

A: First, let's tackle the question of a history of a disability. Under the Americans with Disabilities Act (ADA), a person can have a record of a physical or mental impairment that substantially limits a major life activity. This means that the person may not be substantially limited now but has a record of that kind of condition. Having cancer which required extensive care management would certainly fit this criterion.

Now on the issue of disclosing a disability, that is absolutely voluntary. This means you need not discuss your cancer at all. This is not hiding information or lying to the perspective employer; it is your right not to disclose.

When applying for a job that you feel you are qualified for, you simply apply with the merits of your qualifications. After acceptance of a job, you still have no obligation to disclose any disability related information. You may need to disclose when and if you may need a reasonable accommodation as is provided under Title I of the ADA. At that point, an employer may ask for related medical documentation as you go through the interactive dialogue of a reasonable accommodation request process to verify your disability and the related need for an accommodation.

Food allergies and colleges and universities

Q: My son needs an accommodation from the college where he is applying, as he has food allergies and does not want to use their meal plan. The school says that the committee will not meet to see if they can approve the accommodations until we put down a non-refundable deposit. Can they do this?

A: Under the Americans with Disabilities Act (ADA), a public accommodation cannot place a surcharge on people with disabilities to cover costs of accommodations. The school’s requirement of putting down a deposit before they approve or deny an accommodation could be seen as a surcharge and could potentially be a violation of the ADA.

Fitness for Duty Exams for College Students

Q: My daughter suspended her college enrollment due to medical reasons but is ready to re-enroll. The school is asking for a letter from her physician stating that she is fit to begin school again. Is this discrimination?

A: While mostly applicable to employment, fitness for duty exams or inquiries are covered under the Americans with Disabilities Act (ADA). The college may apply a policy that looks to assure that students do not present a safety risk to themselves or others. The school must also weigh if a reasonable modification may reduce this risk. However, the policy cannot be used to single out specific groups or individuals.

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