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ADA and Reasonable Accommodations
Introduction
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An agency Human Resource (HR) section must understand the obligations of the agency to its employees and applicants under the Americans with Disabilities Act (ADA). Compliance with the ADA is required. When a request is made for accommodation, HR should take a leadership role in helping the agency explore options with the employee or applicant.  Because of the potential for legal action by employees or applicants, agencies should contact DOJ Labor and Employment Section for advice.

 
Title I of the ADA
Title I of the Americans with Disabilities Act, better known as the ADA, prohibits discrimination against employees and applicants with disabilities who with or without reasonable accommodation can perform the essential functions of the jobs they hold or seek.
 
 

 
Reasonable Accommodation
The agency must make reasonable accommodations for known physical or mental limitations of a qualified applicant or employee with a disability unless the agency can show the accommodation would be an undue hardship or fundamental alteration of the employment or business.  Agencies must review requests for accommodation and determine if the request is reasonable and can be offered or if the agency is unable to honor the request.  Options for offering an alternative accommodation can be considered.  Agencies may contact the DOJ Labor and Employment Section for assistance at 503-947-4600.
 

 
Definition of a Disability
  • A person with a physical or mental impairment that substantially limits one or more major life activities
    • “Substantially” means in comparison with the general population
    • There is no specific list of major life activities, but examples are: seeing, hearing, walking, speaking, sleeping, interacting with others, working, caring for oneself and thinking
  • A person with a record of such a physical or mental impairment
    • This also includes people who have been incorrectly classified as having a substantially limiting impairment (e.g., being incorrectly classified as having mental retardation when the person was deaf)
  • A person who is regarded as having such an impairment
    • Someone who does not have an impairment, but the employer considers the person to be impaired
  • A qualified individual with a disability
    • A person with a disability who, with or without reasonable accommodation, can perform the essential functions of a job.

 
Undue Hardship
Undue hardship means:
  • An action requiring significant difficulty or expense (Since the state is considered one employer, this may not be a viable reason to deny accommodation. Contact DOJ for more information at 503-947-4600.)
  • An action that is extensive, substantial, disruptive or that would fundamentally alter the nature of employment.
Disruptions to employees or customers that are the result of fears or prejudices toward an individual’s disability are not considerations for determining “undue hardship.”
 

 
Notification
The agency posts a notification poster in an accessible area that provides notice to employees that the agency provides reasonable accommodations. The State of Oregon includes this notification on most recruitment announcements. 

 
When Accommodation is Needed
The agency will know when an accommodation is needed when the employee or someone on behalf of the employee, asks for assistance on the job. The request may be made verbally or in writing. The person making the request does not have to use the words “reasonable accommodation.” An employee, or job applicant, may make the need for accommodation known whenever it is needed.

 
Time Requirement
The agency must respond to a request for accommodation “in a timely manner.” Court cases show that even waiting as long as two months can be too long to wait, depending on the circumstances. The Equal Employment Opportunity Commission (EEOC) considers “an accommodation delayed is an accommodation denied.”

 
Interactive Process
The law requires the agency and the requesting employee to engage in an interactive process to determine the appropriate accommodation. The interactive process is an informal discussion.
 
During the interactive process, the manager reviews the purpose and essential functions of the job with the employee. Current position descriptions are necessary to determine the essential functions of a job. The employee can help determine exactly what limitations the disability causes for each essential job function and how an accommodation could overcome the limitations. With the employee, identify potential accommodations and assess the effectiveness of each. Document the date, general discussion points and decisions from the meeting. Complete any necessary research and document the accommodation request and response.
 
If the accommodation is not effective, or at some future time becomes ineffective, again consult with the person requesting accommodation to determine whether another accommodation is possible. Contact the DOJ Labor and Employment Section at 503-947-4600 if you need assistance in determining the most appropriate accommodation to offer the employee, or if an accommodation would be unreasonable and a hardship to your agency.
 

 
Requesting Documentation
When the need for an accommodation is not obvious, you may require documentation from a licensed professional. The documentation must specify the following:
  • The person has a disability with functional limitations (not necessarily state the diagnosis)
  • What those exact limitations are (for example, cannot lift over 20 pounds)
  • Link those limitations to the job requirement.
The licensed professional should specify the accommodations that are needed in so far as is possible, but is not expected to know exactly what may work.
 
If you question the documentation, you have a right to obtain a second opinion. You may send the employee to an appropriate professional of the agency’s choosing, at the agency’s expense. It is recommended that you contact the DOJ Labor and Employment Section at 503-947-4600 prior to taking this action.
 

 
Examples of Accommodation
Keep in mind that the ADA discusses minimum standards, but nothing in the ADA prevents an employer from granting or providing more generous accommodations.  Listed below are examples of accommodations:
  • Job restructuring, such as reallocating or redistributing marginal job functions that an employee is unable to do because of a disability, or altering when or how a function (essential or marginal) is performed. Note: an employer never has to reallocate essential functions as a reasonable accommodation.The restructuring cannot negatively impact coworker’s positions
  • Making facilities accessible, following ADA Accessibility Guidelines, up to the point of undue hardship
  • Flexible or modified work schedules
  • Acquiring or modifying equipment or devices
  • Modifying workplace policies
  • Hiring readers, interpreters or assistants
  • Telecommuting
  • Flexible leave to attend appointments or have prosthetic devices repaired
  • Additional leave.

 
What is Not Reasonable
If requested as an accommodation, the employer is not required to provide an employee with a new supervisor. If needed, supervisory methods may change to accommodate an employee. It is neither reasonable nor required for an employer to lower production standards. It is not reasonable to remove essential functions of the employee’s job.

 
Employee Acceptance
Must an Employee Accept an Accomodation
An employer cannot force an employee with a disability to accept an accommodation. However, if the employee does not accept an accommodation, this may mean that the employee is not considered qualified to perform the essential functions of the job.

 
Identifying Accommodations
For ideas on ways to provide accommodations, contact the Job Accommodation Network.
 
Read more on the Federal Government disability website for employment related ADA information.