Established in 1990, the Americans with Disabilities Act (ADA) aimed to address the needs of people with disabilities and prohibit discrimination in employment, public services and other fields.
As with any law, some of the language can be misinterpreted or misunderstood. We’ve highlighted four myths about the ADA in hopes of clearing up those common uncertainties.
Myth 1: An Employee’s Initial Request for an Accommodation Must Be In Writing.
The initial request for an accommodation does not have to be in writing. The Equal Employment Opportunity Commission (EEOC) guidance on reasonable accommodations explains the request may be made during an informal or impromptu conversation between the employee and the supervisor or made by other modes of communication.
The employee may use "plain English" and doesn't have to mention the ADA or use the phrase “reasonable accommodation" for the district to consider the request. A request may be as simple as an employee telling his or her supervisor he or she needs an adjustment or change at work because of a medical condition (either physical or mental).
The district may ask the employee to put the request in writing or complete a form following the initial conversation, but it can't ignore the request. That means supervisors must know how to respond to requests for accommodations and who to contact in the central office (e.g., Human Resources). Documenting and evaluating the request should be the responsibility of Human Resources or the district's ADA coordinator.
Additional information on responding to requests for accommodations, including details on documentation the district can require, is available in EEOC enforcement guidance. The Southwest ADA Center also provides free assistance to districts by phone at 800-949-4232 or email.
Myth 2: An Employee Makes the Final Decision Regarding What Reasonable Accommodation Must Be Provided.
The district, not the employee, is responsible for determining what accommodation it will provide to allow the employee to perform the essential functions of the job. The EEOC's guidance stresses the process for determining the need for an accommodation must be interactive, meaning the employer must engage with the employee. This is an informal process where both parties determine the precise limitations created by the disability and how best to respond to the need for accommodation.
As part of the process, the employer may ask questions concerning the nature of the disability and the employee's functional limitations to help identify an effective accommodation. In addition, the employer may require the employee to provide documentation (e.g., medical certification) to substantiate the request.
In many cases, the employee may suggest accommodations the district should consider. The accommodation provided doesn't need to be the best one or the one preferred by the employee. The district may choose among reasonable accommodations, as long as the one provided is effective.
Examples of accommodation requests that aren't legally required or don't meet the threshold of a reasonable accommodation include:
- A request for indefinite telecommuting was denied because regular in-office work was an essential job function.
- An employee was not “otherwise qualified” because she was excessively absent. The employer attempted to accommodate the employee, but “an employee must be willing and able to demonstrate the skills by coming to work on a regular basis."
Examples of accommodation requests that are legally required or meet the threshold of a reasonable accommodation include:
- Designating a parking space even though parking did not relate to performing one of the employee's essential job functions.
- Reassigning a mechanic who could not lift more than 20 pounds to a vacant position with duties he could perform.
A sample ADA Accommodation Documentation Form can be found here.
Myth 3: Districts Are Required to Provide Unlimited Leave as an ADA Accommodation.
An unpaid leave of absence may be a reasonable accommodation under the ADA, but leave without limits isn't required. The Fifth Circuit Court of Appeals (which includes Texas) has ruled an employer isn't required to accommodate an employee who's requesting indefinite leave as a reasonable accommodation (Moss v. Harris County Constable Precinct One). The EEOC's guidance, however, does not set a specific amount of leave that must be provided. Courts affirm leave may be a reasonable accommodation if it enables an employee to return to duty in the foreseeable future.
The EEOC and the courts have taken a clear position that each request must be evaluated on a case-by-case basis to determine if providing leave will pose an undue hardship on the district. Consideration must be given to the length of leave requested and the impact of the extended absence on campus or department operations. As described in the previous myth, the employer must engage in the interactive process by talking to the requestor.
Myth 4: Reasonable Accommodations Must Relate to Essential Functions of the Job.
The ADA doesn't require a link between a requested accommodation and the employee’s essential job functions. Required accommodations that don’t directly link to performance of an essential job function include:
- Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
- Job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or appropriate adjustment or modifications of examinations, training materials or policies; the provision of qualified readers or interpreters; and other similar accommodations for individuals with disabilities.
In the first accommodation example in Myth #2 above, reserved on-site parking would've made the employee’s workplace “readily accessible to and usable by” the employee and therefore was an employer-required accommodation.
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