Reasonable Accommodations for Employees with Disabilities

Reasonable Accommodations for Employees with Disabilities

March 30, 2023
Reasonable Accommodations for Employees with Disabilities
Three federal laws provide the primary protections for
or psychological condition that impairs an aspect of a
employees and job applicants with disabilities. First, Title I
person’s functioning as compared to most people.
of the Americans with Disabilities Act (ADA), 42 U.S.C.
§§ 12111–12117, prohibits disability discrimination by
In addition to having a disability, an employee or applicant
employers with fifteen or more employees. Second, Section
must be “otherwise qualified” for the job they seek or hold
504 of the Rehabilitation Act, 29 U.S.C. § 794, bars
to receive an accommodation. 42 U.S.C. § 12112(b)(5). To
disability discrimination, including employment
be “otherwise qualified,” an employee or applicant must
discrimination, by recipients of federal funding. Finally,
satisfy the prerequisites for the position, such as the
Section 501 of the Rehabilitation Act, 29 U.S.C. § 791,
necessary education, credentials, job experience, and the
prohibits disability discrimination in most federal
like. He or she must also be able to perform the “essential
employment. Under these laws (which, as relevant here,
functions” of the position, at least if given a reasonable
apply the same standards), illegal disability discrimination
accommodation. 42 U.S.C. § 12111(8). The ADA and
includes an employer’s failure to reasonably accommodate
Rehabilitation Act protect employees and applicants when
an employee or job applicant with a disability. An
they need reasonable accommodations to do the core work
accommodation is any change to a job, the work
of their jobs. A worker who cannot perform a marginal part
environment, or an employer’s policies or practices to allow
of the job, even with an accommodation, can still seek legal
a person with a disability to apply for a job, perform job
protection. It may be a reasonable accommodation to assign
functions, or enjoy workplace benefits on equal terms with
that function to another employee, for example. Employees
other employees.
with disabilities are not “otherwise qualified,” however, if
there is no accommodation that would enable them to
This In Focus reviews the reasonable accommodations
perform the fundamental duties of the positions they hold or
requirement. It explains who qualifies for accommodations,
seek. They can then face the same consequences as other
what the law requires of covered employers, and the limits
employees (such as firing or demotion).
on employers’ obligations. For more information about the
ADA, see CRS In Focus IF12227, The Americans with
Potential Accommodations
Disabilities Act: A Brief Overview, by Abigail A. Graber.
Accommodations can vary in their expense and complexity.
One employee may need a stool for work usually done
Qualifying Employees and Applicants
standing; another might ask an employer to adopt a new
To qualify for an accommodation, an employee or job
software package that is accessible to the blind. The Equal
applicant must have a disability. A person has a disability
Employment Opportunity Commission provides general
within the meaning of the ADA and Rehabilitation Act if he
examples of potential accommodations, including:
or she is actually disabled, has a history of disability, or is
“regarded as” disabled. 42 U.S.C. § 12102(1). However,
[j]ob restructuring; part-time or modified work
only people who are actually disabled or have a history of
schedules; reassignment to a vacant position;
disability are entitled to reasonable accommodations. While
acquisition or modifications of equipment or
the law protects people from adverse treatment on the basis
devices; appropriate adjustment or modifications of
of perceived disabilities (a business cannot refuse to hire
examinations, training materials, or policies; the
someone it erroneously believes to have HIV/AIDS, for
provision of qualified readers or interpreters; and
example), workers and applicants cannot receive
other similar accommodations for individuals with
accommodations for disabilities they do not, in fact, have.
disabilities.
A person with a disability has “a physical or mental
29 C.F.R. § 1630.2(o)(2)(ii). This list is not the full
impairment that substantially limits one or more major life
universe of potential accommodations, nor is each
activities.” 42 U.S.C. § 12102(1). Congress has directed
accommodation on the list always required. The
that this standard should be construed broadly. An
accommodation that is reasonable in any given case will
impairment is any physiological or psychological disorder
depend on the facts, including the nature of the person’s
or condition. “Major life activities” include basic tasks and
disability, the particulars of the job, the structure of the
senses, such as walking, hearing, seeing, standing, or
work environment, and the resources of the employer.
learning; and bodily functions, such as immune function,
endocrine function, or neurological function. A person is
When Employers Must Provide
“substantially limited” if he or she is limited in a major life
Accommodations
activity compared to most people. Putting the pieces of the
The ADA and Rehabilitation Act require workplace
definition together, a disability includes any physiological
accommodations for disability. These laws do not require
changes to address a problem outside of employment or
unrelated to disability. Employers must provide only those
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Reasonable Accommodations for Employees with Disabilities
accommodations that are necessary for employees with
The Interactive Process
disabilities to have equal workplace opportunity; employers
When an employer learns an employee needs an
need not provide accommodations that would put
accommodation, the parties engage in an “interactive
employees with disabilities on a superior footing.
process.” 29 C.F.R. § 1630.2(o)(3). This is an ongoing
discussion between the employer and employee to
Accommodations may be necessary in a variety of contexts.
determine the employee’s needs and what accommodation
Employers must provide accommodations that enable job
would be effective and reasonable. An employee ordinarily
seekers to apply and employees to do their jobs. Employees
triggers the employer’s duty to begin the interactive process
with disabilities are entitled “to enjoy equal benefits and
by requesting an accommodation. Employers do not have to
privileges of employment,” 29 C.F.R. § 1630.2(o)(1)(iii), so
accommodate disabilities that they do not know about,
required accommodations go beyond the bare minimum of
although sometimes a person’s need for an accommodation
what would allow employees to accomplish their job duties.
is so obvious that the employer must start the interactive
For example, an employer may have to provide
process even without a request.
accommodations to alleviate disability-related pain or
discomfort at work, even if an employee is physically
Courts generally hold that employers may ask for
capable of working despite the problem. Employers may
documentation adequate to show the employee’s disability
also have to accommodate employees to provide access to
and need for an accommodation, if this information is not
workplace perks and benefits, like employer-sponsored
obvious. Employers may not require medical or personal
social functions, gyms, and parking spaces.
information irrelevant to the accommodation request.
Congress placed limits on employers’ duty to provide
During the interactive process, employers and employees
accommodations. Employers do not have to provide
should share information in good faith. Courts would likely
accommodations that “impose an undue hardship on the
expect that if an employer rejects a particular
operation of the business.” 42 U.S.C. § 12112(b)(5)(A). An
accommodation, the parties would then try to find a
“undue hardship” is “an action requiring significant
workable alternative. Employers need not provide the
difficulty or expense,” taking into account factors such as
precise accommodation an employee requests, nor the most
the cost, the employer’s resources, and the structure of the
optimal accommodation, so long as the accommodation
employer’s operations. 42 U.S.C. § 12111(10). For
offered is effective.
example, it might be reasonable for a large employer to
reassign tasks to accommodate an employee with a
Considerations for Congress
disability, while a business with only a few employees may
Outside of the disability context, most federal employment
be unable to do so without unduly burdening its other
discrimination laws require only that employers refrain
workers or disrupting the workflow.
from taking adverse actions against employees on the basis
of protected characteristics, such as race or sex. The ADA
Undue hardships go beyond financial and administrative
and Rehabilitation Act require more: employers must
concerns. Changes that would fundamentally alter the job in
remove barriers to workplace equal opportunity for people
question are undue hardships; employers need not excuse
with disabilities. Employers may incur financial and
employees from performing the essential functions of their
administrative costs to comply. Some may be eligible for
jobs (although in some circumstances job reassignment can
certain tax credits and deductions to help compensate for
be a reasonable accommodation). The law also does not
such expenses; there are no other major federal programs
require employers to fundamentally alter their businesses.
providing dedicated assistance to employers to directly
For example, a retail employer may maintain hours of
defray the costs of accommodations. Congress could
operation that coincide with when customers shop, even if
consider additional avenues to help employers reasonably
an employee’s disability makes working those hours
accommodate employees with disabilities, whether via the
difficult.
tax code, grant programs, or other means.
Employers also need not tolerate a “direct threat,” which is
Additionally, for the most part the ADA and Rehabilitation
“a significant risk to the health or safety of others that
Act enact general rules applying to all disabilities and all
cannot be eliminated by reasonable accommodation.” 42
covered employers. Regulations have historically provided
U.S.C. § 12111(3). For example, if no reasonable
more specific guidance. Congress could legislate rules for
accommodation would enable an applicant with a disability
certain contexts, whether those be particular disabilities,
to safely operate a vehicle, an employer need not offer them
such as communicable diseases; accommodations, such as
a job as a driver.
leave requests or telework; or employment settings, like
health care. COVID-19, for example, raised questions about
An employee or applicant bears the burden to show that a
how the reasonable accommodation requirement should
particular accommodation is “reasonable,” that is, that it
apply in a pandemic. See CRS Legal Sidebar LSB10573,
“seems reasonable on its face, i.e., ordinarily or in the run
COVID-19 Vaccination Requirements: Potential
of cases.” US Airways, Inc. v. Barnett, 535 U.S. 391, 401
Constraints on Employer Mandates Under Federal Law, by
(2002). The employer bears the burden to show that the
April J. Anderson and Victoria L. Killion; CRS Legal
accommodation presents an undue hardship or direct threat.
Sidebar LSB10471, COVID-19 and Workplace Liability:
Courts resolve these issues based on individualized facts.
Selected Issues Under Antidiscrimination Laws, by April J.
Anderson. Congress could clarify existing rules or adopt
new ones regarding reasonable accommodations.
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Reasonable Accommodations for Employees with Disabilities

IF12366
Abigail A. Graber, Legislative Attorney

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