The term “reasonable accommodations” may sound familiar to you, but if you haven’t encountered this yet in your workplace, you may be unsure about where to start. We’ve created this quick guide to reasonable accommodations for employers who wish to learn more about their obligations and where to find additional guidance. This guide focuses on the basics of two main types of reasonable accommodations required under federal law: disability accommodations and religious accommodations. Keep in mind, however, that state and local laws may add additional requirements, such as accommodations for pregnancy and childbirth (and related medical conditions), status as a victim of domestic or sexual violence or stalking, and lactation.
As always, be sure to consult your legal advisor about your company’s particular circumstances and obligations.
The Americans with Disabilities Act (ADA) requires, among other provisions, that employers with 15 or more employees provide reasonable accommodations for employees and applicants with disabilities. Many state and local disability discrimination laws have additional requirements, and such laws may apply to a larger number of employers and scenarios. Disabilities under the ADA include any physical or mental impairment that substantially limits a major life activity, such as sitting and standing, or a record of such impairment. A temporary condition or impairment, including one resulting from pregnancy or childbirth, may also be considered a disability.
Reasonable disability accommodations are modifications made by employers that allow individuals with disabilities to apply for a job, perform a job, and enjoy equal employment opportunities. A common accommodation is providing equipment for an employee with a disability, but other examples of reasonable accommodations include modified work schedules and extending leave beyond that which may otherwise be provided under company policy or other laws.
The Civil Rights Act of 1964 and many state and local laws require covered employers to accommodate an employee’s sincere religious, ethical, and moral beliefs.
Examples of reasonable religious accommodations include flexible arrival and departure times, exceptions to dress and grooming codes, and use of facilities for religious observances, such as a quiet room for prayer. Employers may also consider using floating or custom holidays to accommodate an employee’s religious beliefs. If an employee has exhausted their paid time off, they still may be reasonably accommodated with unpaid time off to observe a religious holiday.
Check out these tips for small businesses to consider when providing religious accommodations.
What’s not required
Generally, employers do not have to provide accommodations that would interfere with, or would not allow an employee to perform, the essential functions of their job.
Employers are also not required to provide accommodations that would pose an undue hardship or risk to the employer, such as excessive cost or significant disruption to customer service. Undue hardship is determined on a case-by-case basis and is relative to the size, resources, nature, and structure of the organization.
It’s an interactive process
The discussion is not over simply because a requested accommodation is determined to pose an undue hardship. Under ADA regulations, employers are required to engage in an interactive process with employees who request an accomodation, meaning that each request should be considered individually and alternatives must be considered if the requested accommodation is not reasonable or would pose an undue hardship. Religious freedom protections under the aforementioned Civil Rights Act require a similar interactive process.
Some state and local laws are even more prescriptive. For example, under New York City’s Human Rights Law, failure to engage in a “cooperative dialogue” is a standalone human rights violation, and employers are required to provide their decisions on requested accommodations in writing.
Additionally, it is not necessarily an allowable employer defense to state that an employee did not directly request an accommodation. The Equal Employment Opportunity Commission (EEOC) advises that employers should initiate an interactive process in certain circumstances where they are aware of a disability and have reason to know that the disability is interfering with an employee’s ability to do their job.
Again, state and local laws can require further effort on the employer’s part. Using New York City again as an example, employers are explicitly required under City law to initiate a cooperative dialogue if they have “notice” that an employee “may require” an accommodation.
Put it in writing
Employers should document their reasonable accommodation policy in writing, specify a clear point of contact for employees who wish to request an accommodation, and provide training and instructions for employees, managers, and HR professionals to recognize circumstances where a discussion about accommodations may be required.
There is no legal requirement that an employee’s request for accommodation be in writing, but an employer may generally ask for requests in writing for documentation purposes. Employers may also generally ask for reasonable documentation that an individual has a qualified disability and needs an accommodation, but must take steps to keep such information confidential and separate from other personnel documents. Be sure to note, however, that the EEOC generally advises employers to assume a request for a religious accommodation is based on a sincerely-held religious belief, and, accordingly, only request documentation if there is serious objective cause to think the belief may not be sincerely-held.
Remember that, in some places, like New York City, you may also be required to provide your decision on an accommodation request in writing, but in general it is also a best practice to document the interactive process you engage in with your employee.
The EEOC has compiled some useful tips for creating a reasonable accommodation policy. You should also be sure to review your policy with your legal advisor to be sure you have all of your bases covered, including any unique requirements in the different jurisdictions where you have employees.
Additional resources & notes
EEOC | Fact Sheet: Disability Discrimination
EEOC | Fact Sheet: Religious Discrimination
EEOC | Selected Enforcement Guidances and Other Policy Documents on the ADA
Mineral | Discrimination and Harassment Compliance: Disability*
Mineral | Discrimination and Harassment Compliance: Religion*
Mineral | ADA Reasonable Accommodation - Documentation in Support of Request*
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This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, legal or tax advice. If you have any legal or tax questions regarding this content or related issues, then you should consult with your professional legal or tax advisor.