HAIRSTON-VIRGINIA DEPARTMENT OF

CORRECTIONS (SBCC) 2019

HAIRSTON 2019
 BACKGROUND

My name is Matthew Hairston, I work for the Virginia Department of Corrections at Saint Brides
Correctional Center. I started working for the Department of Corrections in August 2015. I have
a disability. My disability has been latent for majority of my adult life until January 2016, when
my disability started to express itself. I sought treatment because not only was my disability
interfering with my quality of life, my disability was also starting to interfere with my job. I
asked my doctor to write a letter to notify my supervision I was undergoing treatment for my
disability. I gave the letter to Major Terry.

I was diagnosed with bipolar disorder in 2002, as I said, it has been latent for most of my adult
life. In January 2016 my bipolar disorder started to interfere with my life again as it presented
itself as insomnia. Insomnia is one of the most complained about symptoms in people with
bipolar disorder because it affects people in both the manic phase and the depressive phase. My
bipolar disorder substantially limited a major life activity. My bipolar disorder substantially
limited my ability to sleep.

In December 2018, my bipolar disorder started to express itself even more. Not only was I
struggling with insomnia, but I was also having trouble controlling my mood. This was the first
time in 10 years I felt the need to seek psychiatric attention. I was prescribed Lithium to control
my moods and Seroquel to control my insomnia. Seroquel is an antipsychotic, it is also a very
strong sedative. In the lower dosages, Seroquel is used to treat insomnia, I was taking 300mg.
December 21st, 2018 was the first time my disability started to interfere with my job.

January 2019, in addition to bipolar disorder, I was also diagnosed with major depressive
disorder, I was prescribed more psychiatric medication. To get me out of the bed and at times
off the floor I take Trileptal, Effexor, and Remeron. Without medication not only do I
experience an inability to sleep, I also experience thoughts of suicide, and urges to self-mutilate.
I also feel this way when I get my medication adjusted, getting my medication adjusted is just
like when I am not on any medication at all. After seeing my healthcare provider, when my
medication is adjusted, I am prone to feeling these awful feelings for a few days. I am not nor
have I ever been a direct threat to myself or to others. I have never attempted to harm myself or
anybody else, nor have I ever attempted suicide. I have an awesome support team, a few close
reliable friends.

Most of the time when I am struggling with my disability, I am too depressed to do anything
functional. Generally, I lay in bed for several days with the lights off and the blinds closed. I
only get out of the bed to use the bathroom. But I do not bathe. Several days go by without
completing hygiene, several days go by without eating. The worst part about it is even when I
am feeling my absolute lowest, I cannot sleep. To sleep, I would have to take extra Seroquel.
Taking extra Seroquel means running out too soon. Running out of Seroquel too soon means I
would not have anything left for the really bad days.
Between the months of December 2018 and February 2019 my medication was being adjusted
often, prompting me to notify my employer about my disability a second time. March, April,
and May 2019, I was in the position to write my employer a statement about how my disability
interfered with my work performance. My statements were in aligned with the EEOC's
guidelines for starting the interactive process. The EEOC says an employee does not need to use
any “magical” language to request a Reasonable Accommodation. The EEOC says, “When and
individual decides to request an accommodation, the individual notifies his employer that he
needs an adjustment a change or an adjustment at work related to a medical condition.”

May 7th, 2019, not only did I write my third statement about how my disability was affecting my
work performance, but I met in the Human Resource Officer’s office, I told her, directly, about
how my disability affected my work performance. She did not tell me about how to get an ADA
Reasonable Accommodation nor did she start the process to receive one, the Interactive Process.
However, when I was recommended for disciplinary action she did sit in on each stage of the
disciplinary process.

I have a disability. I needed a reasonable accommodation so I can do my job like the rest of my
coworkers. I asked for a reasonable accommodation BEFORE I was ever in a position to be
recommended for disciplinary action.

The ADA protects my disability. The process to receive a reasonable accommodation was never
started, even though I asked one, I asked for one because of my disability. I asked for a
reasonable accommodation to prevent my disability from interfering with my job. When my
disability started to interfere with my job I was disciplined. I told my employer about my
disability BEFORE I was in a position to receive disciplinary action, my requests were ignored,
and then I was disciplined.

This writing is about the discrimination and the harassment I experienced, and continue to
experience, while working at St. Brides Correctional Center (Virginia Department of
Corrections), and how this work environment has become hostile to me, a person with a
disability.
SUMMARY OF EVENTS

HAIRSTON 2019
 TIME LINE

26-JAN-16
Sent Major Terry an email to ask him for a shift change. This is the first time I told him about
my sleeping condition. I submitted a note from my doctor, it said, “Please consider moving
him to day shift while he is being evaluated for treatment.” The note was ignored.

21-DEC-18
Sent Lt. Godfrey a text message telling him I was going to be late for work because I ran out
of sleeping medication, and that I didn't fall asleep until 3am

11-JAN-19
I sent Lt. Godfrey a text explaining why I missed Strike Force training, I explained it was
because of my sleeping medicine.

26-FEB-19
I woke up late for work, Godfrey called me on the phone, I told him I had a very bad night. I
sent him a text message that said I don't mind clarifying what I meant, but first I needed to
know where his obligation to report and where HIPAA begins. He replied “if that's the case I
feel like this might be a straight to HR issue.” I was going to tell him I spent all night trying
not to kill myself, and the only solution I could think of was to take an extra sleeping pill. I
decided it was in my best interest not to tell him, I just told him I couldn't fall asleep and I
needed to take an extra sleeping pill.

21-MAR-19
Godfrey sent me a text asking where I was because I was not at work. I told him I slept
through all of my alarms and through the phone calls. When I got to work, I wrote a
statement telling Lt. Godfrey about my sleeping medication. I told him what I take, how
much, and when. I also mentioned the alternatives I tried, but I did not tell him what
happened when I took the alternatives, like what happened last month. I got on Facebook, I
told all of my friends I was going to livestream my suicide so they could watch.

Lt. Godfrey wrote me up for being late, and then he had me standby to wait for Sgt Evans.
When Sgt. Evans arrived, He issued me a substandard for missing the Strike Force training.
He told me I needed to tighten up, I told him it was because of my medical condition.

I was telling what happened to another Sergeant, that I got written up twice for my medical
condition. She told me to apply for FMLA. I asked her why they didn't just tell me, she said,
“you already know why Hairston, think.”

I wrote Ms. Dandridge, the Human Resources Representative, an email asking for FMLA.

24-MAR-19
I sent a text message telling Lt. Godfrey that I took my sleeping medicine early, then I said,
“which is good because I feel like I could be awake until Tuesday.”

8-APR-19

HAIRSTON 2019
I wrote the Major an email explaining to him the trouble I was having with my medical
condition, I explained everything to him and I asked for an accommodation, I asked to be put
on the 0900-2100 shift. Godfrey called me, he said he spoke to the Major, they agreed to put
me on the 0900-2100 shift.

7-MAY-19
I wrote a statement and emailed it to Captain Little explaining why I was late. In the
statement, I told her a very large part had to do with not getting relieved from work until after
2330. I told her that my medication did not have enough time to run its full course.

31-MAY-19
I sent Lt. Godfrey a text message explaining why I was late to work. I told him it was because
of my sleeping medication, that I only took one pill, but it took over two hours to kick it.

I sent Lt. another text message that said, “Lt., I'm just going to have to tell you...” I told him
the name of my condition, all of the medication I take and what happens when I don't take it.

I sent Lt. Godfrey another text message that said, “I'm going to have to go see Ms.
Baumgartner (Human Resource Officer) I've been trying to hold out because of that thing I
was going through with Mr. White and Ms. Dandridge.” I was afraid they were going to use
the information from my FMLA paperwork against me.

When I got to work, Lt. Godfrey said, “go to HR Hairston, go talk to her about getting FMLA
because I have a feeling this is going to turn into something else.”

7-JUN-19, I had been recommended for disciplinary action because of missed trainings. I was
facing a Group 1.

7-JUN-19
I sent Ms. Baumgartner an email asking about the FMLA paperwork I spoke to her about 8
days prior.

10-JUN-19
Ms. Baumgartner replied to my email asking about the FMLA paperwork. She sent it 10 days
after I asked for it.

I had my due process meeting; I verbally told the Major and Ms. Baumgartner about my
medical condition, and I told them explicitly what happens when I am not on my medication
or when it is being adjusted.

At 1655, I sent the Major an email letting him know that I was still trying to pull together
paperwork from my Healthcare Provider to create a mitigating circumstance. In the email I
said, “I had not slept since 7am yesterday.” I had been awake for 33 hours straight.

At 1920, I sent the Major another email with the information I pulled together. I sent him a
statement and the dates I met with my Healthcare Provider to have my medication adjusted.

1-JUL-19
I notified Ms. Baumgartner via email that my HCP was on vacation, and I asked if there was
a deadline to turn in the FMLA paperwork.

HAIRSTON 2019
3-JUL-19
I saw Ms. Baumgartner when she first came into work. I asked her if she had received my
email. She said, “yea I saw it, I read it, I just haven't replied to it yet.”

I received a notification from the Major letting me know when my final Due process meeting
would take place.

8-JUL-19
I received a response from Ms. Baumgartner, she emailed another copy of the paperwork for
FMLA with a new deadline. This came 7 days after I sent her the email explaining my
situation with my HCP being out of town, and 5 days after I saw her and asked her if she
received my email.

10-JUL-19
The Major sent out an email that said he was absolving the 0900-2100 shift, he said the
people on that shift would be going back to their regular shift. The 0900-2100 was my
accommodation, they were taking it away.

15-JUL-19
I received a Group 1; I submitted a grievance as well as a note from my HCP that included
the dates of what my medication and an explanation of what happens when my medication is
adjusted.

21-JUL-19
I received my first response to my grievance. Even though I turned in a note from my HCP
that excused my last missed training, the Group 1 was being upheld.

1-AUG-19
I submitted a letter attached to a completed Certification of Health Care Provider Employee's
Serious Health Condition (FMLA paperwork). I turned it into Ms. Baumgartner, who took it
straight to the Warden. In the letter I asked the signed documents from my HCP be sufficient
documentation of my medical condition, and I asked the Group 1 I was given be
reconsidered.

8-AUG-19
I turned my paperwork in on August 1st, to Ms. Baumgartner. The Warden wrote on the paper
she received it August 8th, one week after I turned it in.

14-AUG-19
The Warden called me to HR, she revealed her decision to uphold the Group 1 and she
explained her reasoning. She upheld the Group 1 even though I turned in Documentation
from my HCP that disclosed my medical condition and confirmed everything I said in my
statements.

HAIRSTON 2019
TRANSCRIPTS
mail.com

MEETING REQUEST
From MATTHEW HAIRSTON <Hairston@post.com>
To thomas.terry@vadoc.virginia.gov
Date April 8, 2019 08:08

Major,

I am requesting a meeting to find out what my options are, I have a legitimate medical condition where
one of the characteristics is an inability to sleep.  To manage this I take a very strong seditive, I've
taken the same medication for years, but for whatever reason it is interfering with me waking up on
time for work and I am getting murdered with writeups. About two years ago when I first realized I had
this condition I made LT. Godfrey aware of my issue with sleeping and my need for medication. He has
worked with me as best he can, but I am forcing his hand because the instances of being late are
becoming so frequent.

My prescription for sleeping medicine is 3x100mg of Quentiapine. Recently, I have been taking 200mg
sometimes it works two hours after I take it but more often than not I won't sleep until I take the third
pill. When my ability to wake up in the morning is a concern I take 200mg, if it does not make me
drowsy I decide it is in my best interest to not go to sleep at all and I will stay awake. My sleeping
condition allows me to stay awake 36 hours before I crash It has happened on days I've had to work,
but it is rare.

I have tried alternatives like ZZZquil, but to make me feel drowsy I have to take two servings, which is
the equivalent of four Benadryl. 

I have proposed the following as a course correction, but I am still having issues. 

Take 2 Quentiapine at 2000, if I do not feel drowsy by 2100, I will take a half pill. If I do not feel drowsy
by 2130, I will take the second half of the pill which will put me out by 2200, that will allow to wake up
on time for work. I will also but a louder alarm clock. 

I've requested an FMLA packet from HR because as I said this is caused by a legitimate medical
condition.  I go to a special doctor who prescribes the medication for this condition as well as my
other medications so it takes a few days to get an appointment.  I don't want to keep getting smoked
with writeups because I am sure it will soon lead to something more serous.  

My question is, can there be an accommodation made in the interim until I get this FMLA packet
turned in. I don't know if there is a 9 to 9 spot open on B-days.  I really dont want to work on A-days
because of the disorganization of that shift, and I would prefer not to work 5-2 because I get burnt out
to quickly. Night shift will cause the same problem except in reverse.  If I can stay on B-days it would
be greatly appreciated. In the end I guess I don't really have a choice at where I work as long as I don't
get any more write ups or anything more serious. 
Please let me know when you are available to meet to discuss the problem I am having and to
hopefully find a solution until I can get this FMLA packet turned in which will be very soon. 

Hairston

--
Sent from my Android phone with mail.com Mail. Please excuse my brevity.
mail.com

Requested information
From MATTHEW HAIRSTON <Hairston@post.com>
To thomas.terry@vadoc.virginia.gov
Date June 10, 2019 16:55

Hey sir,

I've been running around between doctors to get supporting information in regards to the meeting
earlier. I haven't been to sleep since 7am yesterday because this opportunity is extremely important
and I don't want to waste it. Please grant me a few extra minutes to get everything in the computer to
send to you.

Hairston
--
Sent from my Android phone with mail.com Mail. Please excuse my brevity.
mail.com

Hairston mitigating circumstances

From MATTHEW HAIRSTON <Hairston@post.com>
To thomas.terry@vadoc.virginia.gov
Date June 10, 2019 19:20

Major,

This is the packet I prepared for you in regards to 1MAY29. If it is too late, then it is too late. I hope you
still read my statement though, and I kinda want the people who wrote me up to read it because I want
them to understand that people have real issues and maybe they should talk to people instead of
being so quick to smoke people because we are literally all we got.
--
Sent from my Android phone with mail.com Mail. Please excuse my brevity.
STATEMENT OF FACT
 STATEMENT OF FACT

I have a disability recognized by the Americans with Disabilities Act (Amendments Act of
2008). ADA says once I notify my employer about my disability and I request some sort of help
so I could continue doing my job as expected, my employer is supposed to start the process for
me to receive a reasonable accommodation, in this case, the Interactive Process. EEOC says
when an employer fails to provide a reasonable accommodation, it is considered discrimination.
The reason it is considered discrimination is because the employer is placing a person at a
disadvantage, without an accommodation, that person is not able to perform at the same level as
his coworkers. It is discrimination because the employer is putting the person in a position to be
treated differently.

I am supposed to receive a reasonable accommodation because I have an ADA recognized

disability. I notified my employer about my disability and I asked for assistance. My employer
does not recognize my disability, St. Brides Correctional Center has ignored the documents I
provided, and the statements I’ve submitted requesting some type of assistance, I started asking
for an accommodation in March 2019. Having a reasonable accommodation means I can
perform the duties of my job just like the rest of my coworkers. Being denied a reasonable
accommodation places me in a position to always be at a disadvantage in relation to the people I
work with, not having a reasonable accommodation places me in a position to not be able to
complete the requirements of my job, it puts me in a position to experience discrimination.

This writing is about the discrimination and the harassment I experienced, and continue to
experience, while working at St. Brides Correctional Center (Virginia Department of
Corrections), and how this work environment has become hostile to me, a person with a
disability.

I asked my employer for a reasonable accommodation on several different occasions. I asked for
one because of my disability so I could perform my job as required just like the rest of my
coworkers, a reasonable accommodation was never granted. I was later disciplined for not being
able to meet the expectations of my job, even though, I asked for a reasonable accommodation
and one was never granted.

I work in a hostile work environment, the discrimination I experienced because of my disability

and never receiving something required by the law, makes the work environment hostile. The
work environment at Saint Brides Correctional Center is hostile because never receiving a
reasonable accommodation lends to the discrimination I experience, the discrimination I
experience because of my disability. Not receiving something the law says you are supposed to
have, reasonable accommodation, adds to the hostile work environment, especially when you
asked for assistance because you knew your disability was going to interfere with your work
performance. The work environment at Saint Brides is hostile because I made my supervisors
aware of my disability, by writing statements and providing documentation from my healthcare
provider, I asked for an accommodation because my disability was starting to interfere with my
work performance. My requests for an accommodation were ignored, when my disability started
to cause problems in my work performance, I was recommended for disciplinary action, and I
received a disciplinary sanction.

EEOC says if an employee does something that warrants disciplinary action, and then the
employee sites his disability as the reason for his actions, discipline him. EEOC says to
discipline him and then start the process for the employee to receive a reasonable
accommodation so his disability does not cause him to get into more trouble. That’s fair, the
problem is I asked for an ADA Reasonable Accommodation in MARCH 2019, BEFORE I was
ever in a position to be considered for disciplinary action. I notified my job about my condition
verbally and in writing, I provided documentation from my healthcare provider showing I had a
disability recognized by the ADA and that I was eligible to receive an ADA Reasonable
Accommodation. I asked for a reasonable accommodation BEFORE I was ever in a position to
receive disciplinary action. I never received an accommodation, the process was never started,
instead, when my ADA recognized disability started to interfere with my work performance, I
was recommended for disciplinary action and I received a disciplinary sanction.

Sleeping, not being able to sleep, or not being able to wake up maybe a repetitive subject in this
document, however, is not the focus. Sleep is considered to be a major life activity by the ADA.
The ADA says a person is considered to have a disability when a person has a major life activity
that is substantially limited by a psychiatric or medical condition. The ADA goes on to say a
person may receive a reasonable accommodation if that person, in fact, has a disability and they
ask for one. The disruption my psychiatric conditions cause to my ability to sleep, a major life
activity, qualifies my psychiatric conditions as a disability. By the ADA’s definition I have a
disability, this means I am eligible for an ADA Reasonable Accommodation. Regardless of if I
knew what I needed as an accommodation or not doesn’t matter. The EEOC says a person does
not have to know what they need as a reasonable accommodation, that can be determined after
sitting down during the interactive process to determine what can be offered.

Sleep may seem like the focus of this writing, it isn’t, the focus is the disability I have and the
discrimination I experienced. I asked my employer for a reasonable accommodation to prevent
my disability from interfering with my job performance. I was refused, I was refused even
though the law says I should get one because I am a person with a disability. When my disability
started to interfere with my work performance, I was disciplined. Saint Brides Correctional
Center denied me something that would have prevented my disability from interfering with my
job and then they disciplined me when my disability started to interfere with my job.
I struggle with Bipolar disorder and I struggle with Major depression, even though episodic and
mitigated by medication, the ADA recognizes these conditions as a disability. The ADA
Amendments Act of 2008 broadens the scope of what is considered a disability by clearly stating
what and when a life ailment is protected. The ADAAA says, an impairment must substantially
limit one or more major life activity to rise to the level of a disability under the ADA. The
prognosis for Major Depressive Disorder is several years, while the prognosis for Bipolar
Disorder is lifelong. Both psychiatric conditions have the potential to interfere with a person’s
sleep, they interfere with my sleep. I asked for a reasonable accommodation because I reached a
point in my life where I knew my medical conditions were going to start interfering with my job.
I asked for a reasonable accommodation when I needed it BEFORE I started to get in trouble.
My employer, St. Brides Correctional Center, ignored my requests for a reasonable
accommodation, and then disciplined me when my medical condition started interfering with my
job performance even though I asked for something that would have prevented the interference.

I initially notified my job about my medical condition in January 2016 by submitting a doctor's
note to Major Terry. My bipolar disorder started to interfere with my life again as it presented
itself as insomnia. I sought treatment for my sleeping condition because I was on the night shift,
I was afraid I was going to get caught falling asleep on shift, I was not able to sleep during the
day, I was not able to sleep at all. I was afraid the insomnia I was experiencing, caused by my
bipolar disorder, was going to get me in trouble at my job, I asked my doctor to write a letter to
my job to notify my supervision I was undergoing treatment for insomnia. My doctor wrote the
note and I turned it into Major Terry.

The first documented time I made my supervisor aware of the trouble I was having with my
medication was December 21, 2018. He sent me a text message to find out why I was not at
work, I told him I overslept. I told him oversleeping was a side-effect of the medication I took
for sleeping, Seroquel. This was not the only time we had this conversation. We had similar
conversation “why are you not at work, sorry I overslept because of my medication” from
December until May when he finally told me to go to HR.

The first documented time I asked for assistance was March 2019. On March 21st, 2019, I was
late to work again because of my sleeping medication. I wrote a statement to Lt. Godfrey, my
supervisor, he is also the person who majority of my communications are with. I wrote the
statement because he just finished burning me twice for being late. He burned me once himself,
then he had me wait for another Sergeant to become available, 15 minutes later, the Sergeant we
were waiting for came to the watch office, he burned me a second time, for missing a training
back in February. I missed that training because I overslept, I overslept because of my
medication, I told him I overslept because of my medication. I wrote the statement because I
knew my candle was getting short, I started to get the feeling that if I kept my medical condition
a secret I was going to get into serious trouble. In the statement I shared how the medication was
affecting me, how it was affecting my work performance, and I came up with a plan of action.
According to the EEOC, the statement I wrote was enough to start the interactive process. The
statement was enough for me to be considered for a reasonable accommodation, but nothing
came from it.
In April 2019, I was in the position again to where I needed to write a statement to explain how
my medical condition was affecting my job. On April 8 2019, I wrote a statement explaining the
difficulty I was having waking up in the morning, and how the difficulty was a side-effect from a
prescribed medication (EEOC says a reasonable accommodation should take the side-effects
caused by medication into consideration). In the statement I explained how the medical
conditions I was struggling with substantially limited my ability to sleep every night and how I
needed to take a medication in order to sleep. In the statement I named the medication, Seroquel,
and I shared the dosages I was prescribed, 300mg, and what happens when I take a lesser dosage.
I explained how the psychiatric conditions affected my performance at work, and how the side-
effects from my medication interfered with me getting to work on time. Sometime ago, the
Major started a third shift, a middle shift, to try to cut down on overtime. This shift came in at
0900 and worked until 2130. I don’t know what the requirements to get on that shift, but on
April 8th, 2019, after reading my statement, I received a phone call saying “the Major is putting
you on the 9 to 9 shift, make sure to thank him because he is looking out.”

On May 6th, 2019, I was relieved from work after 2340, I was scheduled to get off from work at
2130. I was put on the middle shift so the medication I took for sleeping had enough time to wear
off, the problem was, staying at work late was just like going to work at regular time. On May
7th I woke up to a text message asking where I was, I was supposed to be at work at 0900. I
responded, “Lt. I am just going to have to tell you.” I told him the name of my medical
condition, the medication I take, what happens when I take it, and what happens when I don’t. I
also told him what happens when my medication does not have enough time to wear off. Once
again, I was in a position where I had to disclose explicit details about my medical condition in
an effort to save my job. When I got to work, I wrote a statement about everything that
happened that caused me to get off at 2340. Lt Godfrey then sent me to HR. He is the person
that said, “Go to HR because I have a feeling this is about to turn into something else.”

I went to HR on May 7, 2019. I spoke to Ms. Baumgartner. I sat in her office, I told her about
my medical condition. I told her about my medication. I told her what happens when I take it,
when I don’t take it, and how my medication is affecting me at work. I sat in her office for
twenty minutes, I waited for her to tell me about ADA or start the interactive process so I could
receive a reasonable accommodation. She mentioned something about her son, but not once did
she mention anything about ADA. She listened, but she didn’t provide any guidance, I left her
office, I returned back to work in the exact same position as I was when I went in, stuck.
Sometime after this meeting I missed a training and I was recommended for disciplinary action.

On June 10, 2019, the Major asked if I had any mitigating circumstances, because that would
save me from getting the Group. I gave him documentation from my healthcare provider, and I
submitted another statement reiterating everything I told in the previous months when I was
trying to get a reasonable accommodation for my disability. He still gave me the Group. He
gave me the Group even though I went to him for help and I told him about my medical
condition months BEFORE I missed the training, months BEFORE I was ever in a position to be
considered for disciplinary action. He gave me the Group even though I gave him the same
medical information I gave him at the beginning of the year. Ms. Baumgartner was present at
every stage of the disciplinary process, she never mentioned that I approached her asking for
assistance back in May, BEFORE any of this was a thing. She offered FMLA, but FMLA is not
the same as ADA, I didn’t need time off from work, I needed a reasonable accommodation. The
Major started the process, he ignored any documentation I provided, he gave me a Group 1.

The middle shift was taken away July 2019, I was assigned back to first shift, I was still taking
Seroquel for my disability, for my inability to sleep, I immediately started getting in trouble
again because I could not wake up in the morning. I woke up to a phone call from Captain Little,
she was calling to find out why I was not at work, I told her I overslept, I told her why, because
of my medication, and I asked her how to get some type of accommodation. I explained to her
how I ended up on the middle shift, because I informed the Major about my disability. I told her
how the medication I was taking for my disability caused me to oversleep. She said, “the Major
can’t give you an accommodation, only an ADA panel can.” She didn’t offer any more
information, not even where to find the policy, I found the policy, Operating Procedure 150.3, by
myself when I was defending myself against disciplinary action. According to OP 150.3, the
information Captain Little gave me was wrong. This was the second time she gave me incorrect
information, the second time I believed what she told me. The first was when I was getting
written up for coming into late to work, every time I came into work late it was because the
medication I take for my Bipolar disorder, the medication I need to sleep. Lt. Mckinney, who
was also present, already knew about my condition, she suggested I go to HR to get more
information about FMLA. Captain Little laughed and said, “I am pretty sure you can’t get
FMLA because of a sleeping condition.” While that may be true, unbeknownst to her, my
sleeping issue is caused by a psychiatric condition, it is considered a disability because sleeping
is considered a major life activity under ADA Amendments Act of 2008, my sleeping condition
is considered a disability under the ADA because it is substantially impaired by a psychiatric
condition.

I appealed the outcome of this disciplinary hearing all the way up to the Warden, Ms. Watson. I
provided her with documentation from my healthcare provider. I provided her with the
documentation I turned into my supervisors showing her that I requested some type of assistance
BEFORE I was recommended for disciplinary action. She ignored everything; she upheld the
Group 1. I showed her I was eligible to receive an ADA Reasonable Accommodation, and I
showed her that I asked for a Reasonable Accommodation BEFORE I was ever in the position to
receive a disciplinary sanction, she ignored everything, and she upheld the Group 1.

On September 4th, 2019, I was suspended from work and then given a Group 2. I was on a
special team for 3.5 years, but you cannot be on that team with an active Group, I was kicked off
the team. I was given the direction to go help the team search. I refused. I refused because I felt
as though doing so perpetuated an already hostile work environment. The work environment
was hostile because of the disability discrimination I was experiencing. I refused because the
same people who discriminated against me who upheld the Group 1 despite me showing the
documentation and statements I wrote asking for help BEFORE I was recommended for
disciplinary action because I missed a training in May, the same people who hand in getting me
kicked off the special team, were the same people giving me orders to go help the special team. I
refused because going to help the team perpetuated an already hostile work environment, an
environment that was hostile because I was discriminated against, I was discriminated against
because of my disability.

Every year since 2008, I made attempts to get on medication, but I didn’t start long term
medication until 2019. At first in late 2018, it started with a little bit of Lithium and a little bit of
Seroquel, and then something happened the beginning of the new year to cause my condition to
take a left turn. In 2019, I needed a lot of Trileptal, a lot of Remeron, a lot of Effexor, and a
heavy dosage of Seroquel. In January 2019, I reached the point where suicidal ideation and my
urges to self-mutilate were extremely difficult to control. No, I never attempted suicide and I
never gave into the urges to harm myself. I never became a danger to myself or others. I wanted
to though, majority of the times I was late was because I was awake late at night fighting these
urges. On these nights I had to take an extra pill because my prescribed amount, 300mg, was not
enough to combat these urges. Now, do I struggle with suicidal ideation and wants to harm
myself? Every Goddamn day, my medication only numbs so much. Should there be any worry?
No I have an awesome team, a few reliable close friends.

I was prescribed Seroquel to help me sleep at night, it is an antipsychotic, it is a very strong

sedative. I have a letter from my health care provider confirming the necessity of the medication,
how strong of a sedative the medication is, and how it might affect my ability to get to work on
time early in the morning. The dosage I was taking was very high, 300mg, but as I mentioned
before, it was a necessary medication and a necessary dosage, I literally could not sleep without
it.

The sleep issue is a side-effect from the Seroquel, the medication I needed to take so I could
sleep, if I did not take the medication, I was susceptible to staying awake 30 to 35 hours each
night. As mentioned before the first documented time I told supervision I was taking medication
for my diagnosed medical conditions and how that medication limited my ability to perform my
job like the rest of my coworkers was Dec 2018, the first documented time I asked for assistance
was March 2019.

I tried reducing my medication previously, back in February 2019, I went from three pills to one
pill. The problem was one pill of Seroquel was not enough, I still need three pills to sleep.
When I accepted the fact that one pill of Seroquel was not enough to make me sleep and I
accepted the fact that I was going to have to take a second pill, usually in my 19th hour awake,
which was approximately three hours before I had to be at work, it put me in the position to
where I may not wake up for work at all. There were several occasions I decided it was in my
best interest to just not go to sleep, like at all. These were the days I was really scared about
getting written up, the days where I had already been late two and three times that week. On
these days I reported to work after being awake for 24 hours, the shift is 12 hours. Once
completing shift means I was awake for 36 hours, and then factoring the struggle to go to sleep
again put me around 43+ hours of being awake.

My sleep issue, my inability to sleep is caused by a psychiatric condition, my oversleeping issue

is a side-effect of my medication. I’ve tried other sleeping medications, when I take them, I feel
like I was drugged, but not drowsy. My most recent experience was February 26th, 2019 when I
tried ZZquil, from the makers of Nyquil. Based on the concerned text messages from my brother
and a few friends, sometime after I took the medication, I posted a status on Facebook that said,
“I am going to kill myself and livestream it so you can watch.” I don’t remember posting the
status or what set me off. If it weren’t for the messages from my friends and family or for the
person that reported me to Facebook, that I needed to be checked on, I wouldn’t have known
about it at all. The worst part about the whole situation was sometime after posting the status, I
fell asleep, I woke up at 2am, that means my friends and family had to worry about if I was still
alive for several hours. I remember this day because Lt. Godfrey sent me a text message asking
me why I was not at work. I asked him where his obligation to report ended and where HIPAA
begins.

When I have to take more than one Seroquel to get to sleep with only a 30-day supply, I run the
risk having 15 pills or less to make it through the whole month. This puts me in the position to
look for alternative methods to get to sleep, this is how I ended up taking ZZquil, which doesn’t
work anymore. Doubling up on sleeping medication leaves 15 days to figure out how I was
going to get to sleep. I decided it was in my best interest to not taking any sleeping medication
on the days I did not have to work. On those days, I stayed awake until I absolutely could not
function, usually around the 38-hour mark.

I was never told about ADA Amendments Act of 2008, or how to get a reasonable
accommodation, I learned about my rights on my own when I was defending myself against
disciplinary action, when I was defending myself against discrimination because of my
disability. When I told my supervisors I have a disability, I was ignored. When I brought them
statements and documentation as early as March 2019 to support my claims, I was ignored.
When I brought my rights to their attention, my rights were ignored. I asked for help in the past
when my medical condition started to interfere with my work performance, but I never got any
help, I did get a Group 1 though.

Now, four months later, I worked my way from 300mg of Seroquel right before I am ready to go
to sleep, to 100mg, two hours before I go to sleep. I’ve learned one tablet of Seroquel lasts about
6 hours. So far this has been working, I was able to find a solution, even if only temporary, on
my own, in the face of discrimination. The truth is I only figured out is how to not get beat by
my sleeping medication.

My medical condition is not one of those conditions that goes away after a short period of time,
or even a long period of time, I don’t know if it will ever go away or if I won't ever need
medication. For now, I still need medication, which means I will still need a reasonable
accommodation. Medication is medication, and medication is unreliable, there are still going to
be those days when I am going to be up late at night debating on if I should take a fourth pill of
Seroquel because I am in so much agony, asking myself if the pain is bearable and if not, is it
worth being late to work. Something like that shouldn’t have to be a debate, if I had a reasonable
accommodation, but I don’t because my documentation was ignored, St. Brides Correctional
Center does not recognize my disability, but I have a Group 1 and a Group 2 though.

There are also going to be those times when my night medication doesn't last until the morning.
On those days I start my mornings laying on the floor curled up in a ball pushing out the
thoughts of suicide fighting whatever makes me want to scratch off all my skin. Once my
morning meds start working, everything is good, I’m generally late to work, but I am functional,
and I am alive.

Being late to work because of the unreliability of my medication is still possible. Because that is
a possibility, in order to do my job like everyone else, I am going to need a reasonable
accommodation. I need a reasonable accommodation because I have a psychiatric condition that
substantially limits my life activities, I need ADA.

I did get FMLA, but I never needed time off from work, I needed an accommodation so I can do
my work and perform as expected, just like the rest of my coworkers. Ms. Baumgartner and
Warden Watson immediately approved me for FMLA after giving me the Group 2. They used
paperwork I used to defend myself against the Group 1. Ms. Baumgartner said there was nothing
else I needed to do because the information she got from the hearings, information I gave her
directly when I sat in her office asking for help back in early May was enough. She said the
information she got about my medical conditions was enough to process me right away for
FMLA. She explained to me how it works, but what she didn’t know was I already knew how it
worked and I also knew that FMLA is enforced by the Department of Labor, not EEOC like the
ADA. The part she was still missing was I didn’t need time off from work as granted by FMLA,
I needed a Reasonable Accommodation as granted by the ADA.

Four supervisors and one Human Resource Officer failed to do what they were supposed to do.
Each failed to at the very least, point me in the right direction to where I could find the policy
about receiving a reasonable accommodation. Instead of receiving a reasonable accommodation
for my medical condition, I received a Group 1, and then a Group 2 for trying to stand up for
myself.

I need a reasonable accommodation, I honestly don’t feel comfortable asking for one, or using
one if the process ever started because of everything that has happened. Granted, I demonstrated
that I can do my job without a reasonable accommodation, but the reality of the situation is that I
still have trouble with my condition.

The bottom line is, discrimination like my condition does not go away after a short period of
time nor does it go away after a long period time. We also cannot pretend that every wrong will
be righted after a significant amount of time has passed. The only thing that matters is the
discrimination happened and that a person experienced it, that I experienced it, and if nothing is
done to right this wrong, people after me, people who have a disability, might also experience
discrimination.

In the end, for at least one full year I was discriminated against because of my disability, a
disability I cannot control, a disability that is protected by the ADA Amendments Act of 2008.
When things were very bad for me, I reached out to the people who I thought were on my team,
my supervisors, instead of helping me, they disciplined me.
POLICIES
 U.S. Equal Employment Opportunity Commission

ADA AMENDMENTS ACT OF 2008

PL 110-325 (S 3406)
September 25, 2008
An Act To restore the intent and protections of the Americans with Disabilities Act of 1990.
Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled,

[42 USCA § 12101 note]

SEC. 1. SHORT TITLE
This Act may be cited as the “ADA Amendments Act of 2008”.

[42 USCA § 12101 note]

SEC. 2. FINDINGS AND PURPOSES
(a) FINDINGS. – Congress finds that –

(1) in enacting the Americans with Disabilities Act of 1990 (ADA), Congress intended that the Act “provide a
clear and comprehensive national mandate for the elimination of discrimination against individuals with
disabilities” and provide broad coverage;
(2) in enacting the ADA, Congress recognized that physical and mental disabilities in no way diminish a
person’s right to fully participate in all aspects of society, but that people with physical or mental disabilities
are frequently precluded from doing so because of prejudice, antiquated attitudes, or the failure to remove
societal and institutional barriers;
(3) while Congress expected that the definition of disability under the ADA would be interpreted consistently
with how courts had applied the definition of a handicapped individual under the Rehabilitation Act of 1973,
that expectation has not been fulfilled;
(4) the holdings of the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its
companion cases have narrowed the broad scope of protection intended to be afforded by the ADA, thus
eliminating protection for many individuals whom Congress intended to protect;
(5) the holding of the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184
(2002) further narrowed the broad scope of protection intended to be afforded by the ADA;

(6) as a result of these Supreme Court cases, lower courts have incorrectly found in individual cases that
people with a range of substantially limiting impairments are not people with disabilities;
(7) in particular, the Supreme Court, in the case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams,
534 U.S. 184 (2002), interpreted the term “substantially limits” to require a greater degree of limitation than
was intended by Congress; and
(8) Congress finds that the current Equal Employment Opportunity Commission ADA regulations defining the
term “substantially limits” as “significantly restricted” are inconsistent with congressional intent, by expressing
too high a standard.

(b) PURPOSES. – The purposes of this Act are—

(1) to carry out the ADA’s objectives of providing “a clear and comprehensive national mandate for the
elimination of discrimination” and “clear, strong, consistent, enforceable standards addressing discrimination”
by reinstating a broad scope of protection to be available under the ADA;
(2) to reject the requirement enunciated by the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S.
471 (1999) and its companion cases that whether an impairment substantially limits a major life activity is to
be determined with reference to the ameliorative effects of mitigating measures;
 (3) to reject the Supreme Court’s reasoning in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) with
regard to coverage under the third prong of the definition of disability and to reinstate the reasoning of the
Supreme Court in School Board of Nassau County v. Arline, 480 U.S. 273 (1987) which set forth a broad
view of the third prong of the definition of handicap under the Rehabilitation Act of 1973;
(4) to reject the standards enunciated by the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v.
Williams, 534 U.S. 184 (2002), that the terms “substantially” and “major” in the definition of disability under
the ADA “need to be interpreted strictly to create a demanding standard for qualifying as disabled,” and that
to be substantially limited in performing a major life activity under the ADA “an individual must have an
impairment that prevents or severely restricts the individual from doing activities that are of central
importance to most people’s daily lives”;
(5) to convey congressional intent that the standard created by the Supreme Court in the case of Toyota
Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) for “substantially limits”, and applied by
lower courts in numerous decisions, has created an inappropriately high level of limitation necessary to
obtain coverage under the ADA, to convey that it is the intent of Congress that the primary object of attention
in cases brought under the ADA should be whether entities covered under the ADA have complied with their
obligations, and to convey that the question of whether an individual’s impairment is a disability under the
ADA should not demand extensive analysis; and
(6) to express Congress’ expectation that the Equal Employment Opportunity Commission will revise that
portion of its current regulations that defines the term “substantially limits” as “significantly restricted” to be
consistent with this Act, including the amendments made by this Act.

SEC. 3. CODIFIED FINDINGS.

Section 2(a) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12101) is amended—

(1) by amending paragraph (1) to read as follows: “(1) physical or mental disabilities in no way diminish a
person's right to fully participate in all aspects of society, yet many people with physical or mental disabilities
have been precluded from doing so because of discrimination; others who have a record of a disability or are
regarded as having a disability also have been subjected to discrimination;”;
(2) by striking paragraph (7); and
(3) by redesignating paragraphs (8) and (9) as paragraphs (7) and (8), respectively.

SEC. 4. DISABILITY DEFINED AND RULES OF CONSTRUCTION.

(a) DEFINITION OF DISABILITY.—Section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102) is amended
to read as follows:
“SEC. 3. DEFINITION OF DISABILITY.
“As used in this Act:

“(1) DISABILITY.—The term ‘disability’ means, with respect to an individual—

“(A) a physical or mental impairment that substantially limits one or more major life activities of
such individual;
“(B) a record of such an impairment; or
“(C) being regarded as having such an impairment (as described in paragraph (3)).

“(2) MAJOR LIFE ACTIVITIES.—

“(A) IN GENERAL.—For purposes of paragraph (1), major life activities include, but are not
limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping,
walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating,
thinking, communicating, and working.
“(B) MAJOR BODILY FUNCTIONS.—For purposes of paragraph (1), a major life activity also
includes the operation of a major bodily function, including but not limited to, functions of the
immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory,
circulatory, endocrine, and reproductive functions.

“(3) REGARDED AS HAVING SUCH AN IMPAIRMENT.—For purposes of paragraph (1)(C):

“(A) An individual meets the requirement of 'being regarded as having such an impairment' if
the individual establishes that he or she has been subjected to an action prohibited under this
Act because of an actual or perceived physical or mental impairment whether or not the
impairment limits or is perceived to limit a major life activity.
 “(B) Paragraph (1)(C) shall not apply to impairments that are transitory and minor. A transitory
impairment is an impairment with an actual or expected duration of 6 months or less.

“(4) RULES OF CONSTRUCTION REGARDING THE DEFINITION OF DISABILITY.—The definition of

‘disability’ in paragraph (1) shall be construed in accordance with the following:

“(A) The definition of disability in this Act shall be construed in favor of broad coverage of
individuals under this Act, to the maximum extent permitted by the terms of this Act.
“(B) The term ‘substantially limits’ shall be interpreted consistently with the findings and
purposes of the ADA Amendments Act of 2008.
“(C) An impairment that substantially limits one major life activity need not limit other major life
activities in order to be considered a disability.
“(D) An impairment that is episodic or in remission is a disability if it would substantially limit a
major life activity when active.
“(E)(i) The determination of whether an impairment substantially limits a major life activity
shall be made without regard to the ameliorative effects of mitigating measures such as—

“(I) medication, medical supplies, equipment, or appliances,

low-vision devices (which do not include ordinary eyeglasses or
contact lenses), prosthetics including limbs and devices,
hearing aids and cochlear implants or other implantable hearing
devices, mobility devices, or oxygen therapy equipment and
supplies;
“(II) use of assistive technology;
“(III) reasonable accommodations or auxiliary aids or services;
or
“(IV) learned behavioral or adaptive neurological modifications.

“(ii) The ameliorative effects of the mitigating measures of ordinary eyeglasses

or contact lenses shall be considered in determining whether an impairment
substantially limits a major life activity.
“(iii) As used in this subparagraph—

“(I) the term ‘ordinary eyeglasses or contact lenses’ means

lenses that are intended to fully correct visual acuity or eliminate
refractive error; and
“(II) the term ‘low-vision devices’ means devices that magnify,
enhance, or otherwise augment a visual image.”.

(b) CONFORMING AMENDMENT.—The Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) is further
amended by adding after section 3 the following:
“SEC. 4. ADDITIONAL DEFINITIONS.
“As used in this Act:

“(1) AUXILIARY AIDS AND SERVICES.—The term ‘auxiliary aids and services’ includes—

“(A) qualified interpreters or other effective methods of making aurally delivered materials
available to individuals with hearing impairments;
“(B) qualified readers, taped texts, or other effective methods of making visually delivered
materials available to individuals with visual impairments;
“(C) acquisition or modification of equipment or devices; and
“(D) other similar services and actions.

“(2) STATE.—The term ‘State’ means each of the several States, the District of Columbia, the
Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands of the United States, the Trust
Territory of the Pacific Islands, and the Commonwealth of the Northern Mariana Islands.”

(c) AMENDMENT TO THE TABLE OF CONTENTS.—The table of contents contained in section 1(b) of the Americans with
Disabilities Act of 1990 is amended by striking the item relating to section 3 and inserting the following items:
“Sec. 3. Definition of disability.
“Sec. 4. Additional definitions.”.

SEC. 5. DISCRIMINATION ON THE BASIS OF DISABILITY.

(a) ON THE BASIS OF DISABILITY.—Section 102 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12112) is
amended—

(1) in subsection (a), by striking “with a disability because of the disability of such individual” and inserting “on
the basis of disability”; and
(2) in subsection (b) in the matter preceding paragraph (1), by striking “discriminate” and inserting
“discriminate against a qualified individual on the basis of disability”.

(b) QUALIFICATION STANDARDS AND TESTS RELATED TO UNCORRECTED VISION.—Section 103 of the Americans
with Disabilities Act of 1990 (42 U.S.C. 12113) is amended by redesignating subsections (c) and (d) as subsections (d) and
(e), respectively, and inserting after subsection (b) the following new subsection:
“(c) QUALIFICATION STANDARDS AND TESTS RELATED TO UNCORRECTED VISION.— Notwithstanding section 3(4)
(E)(ii), a covered entity shall not use qualification standards, employment tests, or other selection criteria based on an
individual’s uncorrected vision unless the standard, test, or other selection criteria, as used by the covered entity, is shown
to be job-related for the position in question and consistent with business necessity.”
(c) CONFORMING AMENDMENTS.—

(1) Section 101(8) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111(8)) is amended—

(A) in the paragraph heading, by striking “WITH A DISABILITY”; and

(B) by striking “with a disability” after “individual” both places it appears.

(2) Section 104(a) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12114(a)) is amended by striking
“the term ‘qualified individual with a disability’ shall” and inserting “a qualified individual with a disability shall”.

SEC. 6. RULES OF CONSTRUCTION.

(a) Title V of the Americans with Disabilities Act of 1990 (42 U.S.C. 12201 et seq.) is amended—

(1) by adding at the end of section 501 the following:

“(e) BENEFITS UNDER STATE WORKER’S COMPENSATION LAWS.—Nothing in this Act

alters the standards for determining eligibility for benefits under State worker’s compensation
laws or under State and Federal disability benefit programs.
“(f) FUNDAMENTAL ALTERATION.—Nothing in this Act alters the provision of section 302(b)
(2)(A)(ii), specifying that reasonable modifications in policies, practices, or procedures shall
be required, unless an entity can demonstrate that making such modifications in policies,
practices, or procedures, including academic requirements in postsecondary education, would
fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or
accommodations involved.
“(g) CLAIMS OF NO DISABILITY.—Nothing in this Act shall provide the basis for a claim by
an individual without a disability that the individual was subject to discrimination because of
the individual’s lack of disability.
“(h) REASONABLE ACCOMMODATIONS AND MODIFICATIONS.—A covered entity under
title I, a public entity under title II, and any person who owns, leases (or leases to), or
operates a place of public accommodation under title III, need not provide a reasonable
accommodation or a reasonable modification to policies, practices, or procedures to an
individual who meets the definition of disability in section 3(1) solely under subparagraph (C)
of such section.”;

(2) by redesignating section 506 through 514 as sections 507 through 515, respectively, and adding after
section 505 the following:
“SEC. 506. RULE OF CONSTRUCTION REGARDING REGULATORY AUTHORITY.
“The authority to issue regulations granted to the Equal Employment Opportunity Commission, the Attorney
General, and the Secretary of Transportation under this Act includes the authority to issue regulations
implementing the definitions of disability in section 3 (including rules of construction) and the definitions in
section 4, consistent with the ADA Amendments Act of 2008.”; and
(3) in section 511 (as redesignated by paragraph (2)) (42 U.S.C. 12211), in subsection (c), by striking “511(b)
(3)” and inserting “512(b)(3)”.
(b) The table of contents contained in section 1(b) of the Americans with Disabilities Act of 1990 is amended by
redesignating the items relating to sections 506 through 514 as the items relating to sections 507 through 515, respectively,
and by inserting after the item relating to section 505 the following new item:
“Sec. 506. Rule of construction regarding regulatory authority.”

SEC. 7. CONFORMING AMENDMENTS.

Section 7 of the Rehabilitation Act of 1973 (29 U.S.C. 705) is amended—

(1) in paragraph (9)(B), by striking “a physical” and all that follows through “major life activities”, and inserting
“the meaning given it in section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102)”; and
(2) in paragraph (20)(B), by striking “any person who” and all that follows through the period at the end, and
inserting “any person who has a disability as defined in section 3 of the Americans with Disabilities Act of
1990 (42 U.S.C. 12102).”.

[29 USCA § 705 note]

SEC. 8. EFFECTIVE DATE
This Act and the amendments made by this Act shall become effective on January 1, 2009.
Approved September 25, 2008.
The U.S. Equal Employment Opportunity Commission

EEOC Enforcement Guidance on the Americans with

Disabilities Act and Psychiatric Disabilities
EEOC NOTICE
Number 915.002
Date 3-25-97 Notice Concerning The
Americans With
1. SUBJECT: EEOC Enforcement Guidance on the Americans with Disabilities Disabilities Act
Act and Psychiatric Disabilities Amendments Act Of
2. PURPOSE: This enforcement guidance sets forth the Commission's 2008
position on the application of Title I of the Americans with Disabilities
Act of 1990 to individuals with psychiatric disabilities. This document was issued prior
to enactment of the Americans
3. EFFECTIVE DATE: Upon receipt.
with Disabilities Act Amendments
4. EXPIRATION DATE: As an exception to EEOC Order 205.001, Appendix B, Act of 2008 (ADAAA), which took
Attachment 4, § a(5), this Notice will remain in effect until rescinded oreffect on January 1, 2009. The
superseded. ADAAA broadened the statutory
definition of disability, as
5. ORIGINATOR: ADA Division, Office of Legal Counsel. summarized in this list of specific
changes.
6. INSTRUCTIONS: File after Section 902 of Volume II of the Compliance
Manual.

3-25-97 /S/
__________________ _____________________________________
Date Gilbert F. Casellas
Chairman

TABLE OF CONTENTS
(page numbers removed in ASCII version)

INTRODUCTION

WHAT IS A PSYCHIATRIC DISABILITY UNDER THE ADA

DISCLOSURE OF DISABILITY

REQUESTING REASONABLE ACCOMMODATION

SELECTED TYPES OF REASONABLE ACCOMMODATION

CONDUCT

DIRECT THREAT

PROFESSIONAL LICENSING

INDEX (removed in ASCII version)

---------------------------------
Enforcement Guidance: The Americans With Disabilities Act and Psychiatric
Disabilities

INTRODUCTION

The workforce includes many individuals with psychiatric disabilities who

face employment discrimination because their disabilities are stigmatized
or misunderstood. Congress intended Title I of the Americans with
Disabilities Act (ADA)1 to combat such employment discrimination as well
as the myths, fears, and stereotypes upon which it is based.2

The Equal Employment Opportunity Commission ("EEOC" or "Commission")

receives a large number of charges under the ADA alleging employment
discrimination based on psychiatric disability.3 These charges raise a
wide array of legal issues including, for example, whether an individual
has a psychiatric disability as defined by the ADA and whether an employer
may ask about an individual's psychiatric disability. People with
psychiatric disabilities and employers also have posed numerous questions
to the EEOC about this topic.

This guidance is designed to:

facilitate the full enforcement of the ADA with respect to

individuals alleging employment discrimination based on psychiatric
disability;

respond to questions and concerns expressed by individuals with

psychiatric disabilities regarding the ADA; and

answer questions posed by employers about how principles of ADA

analysis apply in the context of psychiatric disabilities.4

WHAT IS A PSYCHIATRIC DISABILITY UNDER THE ADA?

Under the ADA, the term "disability" means: "(a) A physical or mental
impairment that substantially limits one or more of the major life
activities of [an] individual; (b) a record of such an impairment; or (c)
being regarded as having such an impairment."5

This guidance focuses on the first prong of the ADA's definition of

"disability" because of the great number of questions about how it is
applied in the context of psychiatric conditions.

Impairment

1. What is a "mental impairment" under the ADA?

The ADA rule defines "mental impairment" to include "[a]ny mental or

psychological disorder, such as . . . emotional or mental illness."6
Examples of "emotional or mental illness[es]" include major depression,
bipolar disorder, anxiety disorders (which include panic disorder,
obsessive compulsive disorder, and post-traumatic stress disorder),
schizophrenia, and personality disorders. The current edition of the
American Psychiatric Association's Diagnostic and Statistical Manual of
Mental Disorders (now the fourth edition, DSM-IV) is relevant for
identifying these disorders. The DSM-IV has been recognized as an
important reference by courts7 and is widely used by American mental
health professionals for diagnostic and insurance reimbursement purposes.

Not all conditions listed in the DSM-IV, however, are disabilities, or

even impairments, for purposes of the ADA. For example, the DSM-IV lists
several conditions that Congress expressly excluded from the ADA's
definition of "disability."8 While DSM-IV covers conditions involving drug
abuse, the ADA provides that the term "individual with a disability" does
not include an individual who is currently engaging in the illegal use of
drugs, when the covered entity acts on the basis of that use.9 The DSM-IV
also includes conditions that are not mental disorders but for which
people may seek treatment (for example, problems with a spouse or
child).10 Because these conditions are not disorders, they are not
impairments under the ADA.11

Even if a condition is an impairment, it is not automatically a

"disability." To rise to the level of a "disability," an impairment must
"substantially limit" one or more major life activities of the
individual.12

2. Are traits or behaviors in themselves mental impairments?

No. Traits or behaviors are not, in themselves, mental impairments. For

example, stress, in itself, is not automatically a mental impairment.
Stress, however, may be shown to be related to a mental or physical
impairment. Similarly, traits like irritability, chronic lateness, and
poor judgment are not, in themselves, mental impairments, although they
may be linked to mental impairments.13

Major Life Activities

An impairment must substantially limit one or more major life activities

to rise to the level of a "disability" under the ADA.14

3. What major life activities are limited by mental impairments?

The major life activities limited by mental impairments differ from person
to person. There is no exhaustive list of major life activities. For
some people, mental impairments restrict major life activities such as
learning, thinking, concentrating, interacting with others,15 caring for
oneself, speaking, performing manual tasks, or working. Sleeping is also
a major life activity that may be limited by mental impairments.16

4. To establish a psychiatric disability, must an individual always show

that s/he is substantially limited in working?

No. The first question is whether an individual is substantially

limited in a major life activity other than working (e.g., sleeping,
concentrating, caring for oneself). Working should be analyzed only if no
other major life activity is substantially limited by an impairment.17

Substantial Limitation

Under the ADA, an impairment rises to the level of a disability if it

substantially limits a major life activity.18 "Substantial limitation" is
evaluated in terms of the severity of the limitation and the length of
time it restricts a major life activity.19The determination that a
particular individual has a substantially limiting impairment should be
based on information about how the impairment affects that individual and
not on generalizations about the condition. Relevant evidence for EEOC
investigators includes descriptions of an individual's typical level of
functioning at home, at work, and in other settings, as well as evidence
showing that the individual's functional limitations are linked to his/her
impairment. Expert testimony about substantial limitation is not
necessarily required. Credible testimony from the individual with a
disability and his/her family members, friends, or coworkers may suffice.

5. When is an impairment sufficiently severe to substantially limit a

major life activity?
An impairment is sufficiently severe to substantially limit a major life
activity if it prevents an individual from performing a major life
activity or significantly restricts the condition, manner, or duration
under which an individual can perform a major life activity, as compared
to the average person in the general population.20 An impairment does not
significantly restrict major life activities if it results in only mild
limitations.

6. Should the corrective effects of medications be considered when deciding

if an impairment is so severe that it substantially limits a major life
activity?

No. The ADA legislative history unequivocally states that the extent to
which an impairment limits performance of a major life activity is
assessed without regard to mitigating measures, including medications.21
Thus, an individual who is taking medication for a mental impairment has
an ADA disability if there is evidence that the mental impairment, when
left untreated, substantially limits a major life activity.22 Relevant
evidence for EEOC investigators includes, for example, a description of
how an individual's condition changed when s/he went off medication23 or
needed to have dosages adjusted, or a description of his/her condition
before starting medication.24

7. How long does a mental impairment have to last to be substantially

limiting?

An impairment is substantially limiting if it lasts for more than several

months and significantly restricts the performance of one or more major
life activities during that time. It is not substantially limiting if it
lasts for only a brief time or does not significantly restrict an
individual's ability to perform a major life activity.25 Whether the
impairment is substantially limiting is assessed without regard to
mitigating measures such as medication.

Example A: An employee has had major depression for almost a

year. He has been intensely sad and socially withdrawn (except for going
to work), has developed serious insomnia, and has had severe problems
concentrating. This employee has an impairment (major depression) that
significantly restricts his ability to interact with others, sleep, and
concentrate. The effects of this impairment are severe and have lasted
long enough to be substantially limiting.

In addition, some conditions may be long-term, or potentially long-term,

in that their duration is indefinite and unknowable or is expected to be
at least several months. Such conditions, if severe, may constitute
disabilities.26

Example B: An employee has taken medication for bipolar

disorder for a few months. For some time before starting medication, he
experienced increasingly severe and frequent cycles of depression and
mania; at times, he became extremely withdrawn socially or had difficulty
caring for himself. His symptoms have abated with medication, but his
doctor says that the duration and course of his bipolar disorder is
indefinite, although it is potentially long-term. This employee's
impairment (bipolar disorder) significantly restricts his major life
activities of interacting with others and caring for himself, when
considered without medication. The effects of his impairment are severe,
and their duration is indefinite and potentially long-term.

However, conditions that are temporary and have no permanent or long-term

effects on an individual's major life activities are not substantially
limiting.

Example C: An employee was distressed by the end of a

romantic relationship. Although he continued his daily routine, he
sometimes became agitated at work. He was most distressed for about a
month during and immediately after the breakup. He sought counseling and
his mood improved within weeks. His counselor gave him a diagnosis of
"adjustment disorder" and stated that he was not expected to experience
any long-term problems associated with this event. While he has an
impairment (adjustment disorder), his impairment was short-term, did not
significantly restrict major life activities during that time, and was not
expected to have permanent or long-term effects. This employee does not
have a disability for purposes of the ADA.

8. Can chronic, episodic disorders be substantially limiting?

Yes. Chronic, episodic conditions may constitute substantially limiting

impairments if they are substantially limiting when active or have a high
likelihood of recurrence in substantially limiting forms. For some
individuals, psychiatric impairments such as bipolar disorder, major
depression, and schizophrenia may remit and intensify, sometimes
repeatedly, over the course of several months or several years.27

9. When does an impairment substantially limit an individual's ability to

interact with others?

An impairment substantially limits an individual's ability to interact

with others if, due to the impairment, s/he is significantly restricted as
compared to the average person in the general population. Some
unfriendliness with coworkers or a supervisor would not, standing alone,
be sufficient to establish a substantial limitation in interacting with
others. An individual would be substantially limited, however, if his/
her relations with others were characterized on a regular basis by severe
problems, for example, consistently high levels of hostility, social
withdrawal, or failure to communicate when necessary.

These limitations must be long-term or potentially long-term, as opposed

to temporary, to justify a finding of ADA disability.

Example: An individual diagnosed with schizophrenia now works

successfully as a computer programmer for a large company. Before finding
an effective medication, however, he stayed in his room at home for
several months, usually refusing to talk to family and close friends.
After finding an effective medication, he was able to return to school,
graduate, and start his career. This individual has a mental impairment,
schizophrenia, which substantially limits his ability to interact with
others when evaluated without medication. Accordingly, he is an individual
with a disability as defined by the ADA.

10. When does an impairment substantially limit an individual's ability

to concentrate?

An impairment substantially limits an individual's ability to concentrate

if, due to the impairment, s/he is significantly restricted as compared to
the average person in the general population.28 For example, an individual
would be substantially limited if s/he was easily and frequently
distracted, meaning that his/her attention was frequently drawn to
irrelevant sights or sounds or to intrusive thoughts; or if s/he
experienced his/her "mind going blank" on a frequent basis.

Such limitations must be long-term or potentially long-term, as opposed to

temporary, to justify a finding of ADA disability.29

Example A: An employee who has an anxiety disorder says that

his mind wanders frequently and that he is often distracted by irrelevant
thoughts. As a result, he makes repeated errors at work on detailed or
complex tasks, even after being reprimanded. His doctor says that the
errors are caused by his anxiety disorder and may last indefinitely. This
individual has a disability because, as a result of an anxiety disorder,
his ability to concentrate is significantly restricted as compared to the
average person in the general population.

Example B: An employee states that he has trouble

concentrating when he is tired or during long meetings. He attributes
this to his chronic depression. Although his ability to concentrate may
be slightly limited due to depression (a mental impairment), it is not
significantly restricted as compared to the average person in the general
population. Many people in the general population have difficulty
concentrating when they are tired or during long meetings.

11. When does an impairment substantially limit an individual's ability

to sleep?

An impairment substantially limits an individual's ability to sleep if,

due to the impairment, his/her sleep is significantly restricted as
compared to the average person in the general population. These
limitations must be long-term or potentially long-term as opposed to
temporary to justify a finding of ADA disability.

For example, an individual who sleeps only a negligible amount without

medication for many months, due to post-traumatic stress disorder, would
be significantly restricted as compared to the average person in the
general population and therefore would be substantially limited in
sleeping.30 Similarly, an individual who for several months typically
slept about two to three hours per night without medication, due to
depression, also would be substantially limited in sleeping.

By contrast, an individual would not be substantially limited in sleeping

if s/he had some trouble getting to sleep or sometimes slept fitfully
because of a mental impairment. Although this individual may be slightly
restricted in sleeping, s/he is not significantly restricted as compared
to the average person in the general population.

12. When does an impairment substantially limit an individual's ability

to care for him/herself?

An impairment substantially limits an individual's ability to care for

him/herself if, due to the impairment, an individual is significantly
restricted as compared to the average person in the general population in
performing basic activities such as getting up in the morning, bathing,
dressing, and preparing or obtaining food. These limitations must be
long-term or potentially long-term as opposed to temporary to justify a
finding of ADA disability.

Some psychiatric impairments, for example major depression, may result in

an individual sleeping too much. In such cases, an individual may be
substantially limited if, as a result of the impairment, s/he sleeps so
much that s/he does not effectively care for him/herself. Alternatively,
the individual may be substantially limited in working.

DISCLOSURE OF DISABILITY

Individuals with psychiatric disabilities may have questions about whether

and when they must disclose their disability to their employer under the
ADA. They may have concerns about the potential negative consequences of
disclosing a psychiatric disability in the workplace, and about the
confidentiality of information that they do disclose.

13. May an employer ask questions on a job application about history of

treatment of mental illness, hospitalization, or the existence of mental
or emotional illness or psychiatric disability?

No. An employer may not ask questions that are likely to elicit
information about a disability before making an offer of employment.31
Questions on a job application about psychiatric disability or mental or
emotional illness or about treatment are likely to elicit information
about a psychiatric disability and therefore are prohibited before an
offer of employment is made.
14. When may an employer lawfully ask an individual about a psychiatric
disability under the ADA?

An employer may ask for disability-related information, including

information about psychiatric disability, only in the following limited
circumstances:

Application Stage. Employers are prohibited from asking

disability-related questions before making an offer of employment. An
exception, however, is if an applicant asks for reasonable accommodation
for the hiring process. If the need for this accommodation is not
obvious, an employer may ask an applicant for reasonable documentation
about his/her disability. The employer may require the applicant to
provide documentation from an appropriate professional concerning his/her
disability and functional limitations.32 A variety of health professionals
may provide such documentation regarding psychiatric disabilities
including primary health care professionals,33 psychiatrists,
psychologists, psychiatric nurses, and licensed mental health
professionals such as licensed clinical social workers and licensed
professional counselors.34

An employer should make clear to the applicant why it is requesting such

information, i.e., to verify the existence of a disability and the need
for an accommodation. Furthermore, the employer may request only
information necessary to accomplish these limited purposes.

Example A: An applicant for a secretarial job asks to take a

typing test in a quiet location rather than in a busy reception area
"because of a medical condition." The employer may make
disability-related inquiries at this point because the applicant's need
for reasonable accommodation under the ADA is not obvious based on the
statement that an accommodation is needed "because of a medical
condition." Specifically, the employer may ask the applicant to provide
documentation showing that she has an impairment that substantially limits
a major life activity and that she needs to take the typing test in a
quiet location because of disability-related functional limitations.35

Although an employer may not ask an applicant if s/he will need reasonable
accommodation for the job, there is an exception if the employer could
reasonably believe, before making a job offer, that the applicant will
need accommodation to perform the functions of the job. For an individual
with a non-visible disability, this may occur if the individual
voluntarily discloses his/her disability or if s/he voluntarily tells the
employer that s/he needs reasonable accommodation to perform the job. The
employer may then ask certain limited questions, specifically:

whether the applicant needs reasonable accommodation; and

what type of reasonable accommodation would be needed to

perform the functions of the job.36

After making an offer of employment, if the employer requires a

post-offer, preemployment medical examination or inquiry. After an
employer extends an offer of employment, the employer may require a
medical examination (including a psychiatric examination) or ask questions
related to disability (including questions about psychiatric disability)
if the employer subjects all entering employees in the same job category
to the same inquiries or examinations regardless of disability. The
inquiries and examinations do not need to be related to the job.37

During employment, when a disability-related inquiry or medical

examination of an employee is "job-related and consistent with business
necessity."38 This requirement may be met when an employer has a
reasonable belief, based on objective evidence, that: (1) an employee's
ability to perform essential job functions39 will be impaired by a medical
condition; or (2) an employee will pose a direct threat due to a medical
condition. Thus, for example, inquiries or medical examinations are
permitted if they follow-up on a request for reasonable accommodation when
the need for accommodation is not obvious, or if they address reasonable
concerns about whether an individual is fit to perform essential functions
of his/her position. In addition, inquiries or examinations are permitted
if they are required by another Federal law or regulation.40 In these
situations, the inquiries or examinations must not exceed the scope of the
specific medical condition and its effect on the employee's ability, with
or without reasonable accommodation, to perform essential job functions or
to work without posing a direct threat.41

Example B: A delivery person does not learn the route he is

required to take when he makes deliveries in a particular neighborhood.
He often does not deliver items at all or delivers them to the wrong
address. He is not adequately performing his essential function of making
deliveries. There is no indication, however, that his failure to learn
his route is related in any way to a medical condition. Because the
employer does not have a reasonable belief, based on objective evidence,
that this individual's ability to perform his essential job function is
impaired by a medical condition, a medical examination (including a
psychiatric examination) or disability-related inquiries would not be
job-related and consistent with business necessity.42

Example C: A limousine service knows that one of its best

drivers has bipolar disorder and had a manic episode last year, which
started when he was driving a group of diplomats to around-the-clock
meetings. During the manic episode, the chauffeur engaged in behavior
that posed a direct threat to himself and others (he repeatedly drove a
company limousine in a reckless manner). After a short leave of absence,
he returned to work and to his usual high level of performance. The
limousine service now wants to assign him to drive several business
executives who may begin around-the-clock labor negotiations during the
next several weeks. The employer is concerned, however, that this will
trigger another manic episode and that, as a result, the employee will
drive recklessly and pose a significant risk of substantial harm to
himself and others. There is no indication that the employee's condition
has changed in the last year, or that his manic episode last year was not
precipitated by the assignment to drive to around-the-clock meetings. The
employer may make disability-related inquiries, or require a medical
examination, because it has a reasonable belief, based on objective
evidence, that the employee will pose a direct threat to himself or others
due to a medical condition.

Example D: An employee with depression seeks to return to

work after a leave of absence during which she was hospitalized and her
medication was adjusted. Her employer may request a fitness-for-duty
examination because it has a reasonable belief, based on the employee's
hospitalization and medication adjustment, that her ability to perform
essential job functions may continue to be impaired by a medical
condition. This examination, however, must be limited to the effect of
her depression on her ability, with or without reasonable accommodation,
to perform essential job functions. Inquiries about her entire
psychiatric history or about the details of her therapy sessions would,
for example, exceed this limited scope.

15. Do ADA confidentiality requirements apply to information about a

psychiatric disability disclosed to an employer?

Yes. Employers must keep all information concerning the medical condition
or history of its applicants or employees, including information about
psychiatric disability, confidential under the ADA. This includes medical
information that an individual voluntarily tells his/her employer.
Employers must collect and maintain such information on separate forms and
in separate medical files, apart from the usual personnel files.43 There
are limited exceptions to the ADA confidentiality requirements:

supervisors and managers may be told about necessary restrictions

on the work or duties of the employee and about necessary accommodations;

first aid and safety personnel may be told if the disability

might require emergency treatment; and
 government officials investigating compliance with the ADA must
be given relevant information on request.44

16. How can an employer respond when employees ask questions about a
coworker who has a disability?

If employees ask questions about a coworker who has a disability, the

employer must not disclose any medical information in response. Apart
from the limited exceptions listed in Question 15, the ADA confidentiality
provisions prohibit such disclosure.

An employer also may not tell employees whether it is providing a

reasonable accommodation for a particular individual. A statement that an
individual receives a reasonable accommodation discloses that the
individual probably has a disability because only individuals with
disabilities are entitled to reasonable accommodation under the ADA. In
response to coworker questions, however, the employer may explain that it
is acting for legitimate business reasons or in compliance with federal
law.

As background information for all employees, an employer may find it

helpful to explain the requirements of the ADA, including the obligation
to provide reasonable accommodation, in its employee handbook or in its
employee orientation or training.

REQUESTING REASONABLE ACCOMMODATION

An employer must provide a reasonable accommodation to the known physical

or mental limitations of a qualified individual with a disability unless
it can show that the accommodation would impose an undue hardship.45 An
employee's decision about requesting reasonable accommodation may be
influenced by his/her concerns about the potential negative consequences
of disclosing a psychiatric disability at work. Employees and employers
alike have posed numerous questions about what constitutes a request for
reasonable accommodation.

17. When an individual decides to request reasonable accommodation, what

must s/he say to make the request and start the reasonable accommodation
process?

When an individual decides to request accommodation, the individual or

his/her representative must let the employer know that s/he needs an
adjustment or change at work for a reason related to a medical condition.
To request accommodation, an individual may use "plain English" and need
not mention the ADA or use the phrase "reasonable accommodation."46

Example A: An employee asks for time off because he is

"depressed and stressed." The employee has communicated a request for a
change at work (time off) for a reason related to a medical condition
(being "depressed and stressed" may be "plain English" for a medical
condition). This statement is sufficient to put the employer on notice
that the employee is requesting reasonable accommodation. However, if the
employee's need for accommodation is not obvious, the employer may ask for
reasonable documentation concerning the employee's disability and
functional limitations.47

Example B: An employee submits a note from a health

professional stating that he is having a stress reaction and needs one
week off. Subsequently, his wife telephones the Human Resources department
to say that the employee is disoriented and mentally falling apart and
that the family is having him hospitalized. The wife asks about
procedures for extending the employee's leave and states that she will
provide the necessary information as soon as possible but that she may
need a little extra time. The wife's statement is sufficient to
constitute a request for reasonable accommodation. The wife has asked for
changes at work (an exception to the procedures for requesting leave and
more time off) for a reason related to a medical condition (her husband
had a stress reaction and is so mentally disoriented that he is being
hospitalized). As in the previous example, if the need for accommodation
is not obvious, the employer may request documentation of disability and
clarification of the need for accommodation.48

Example C: An employee asks to take a few days off to rest

after the completion of a major project. The employee does not link her
need for a few days off to a medical condition. Thus, even though she has
requested a change at work (time off), her statement is not sufficient to
put the employer on notice that she is requesting reasonable
accommodation.

18. May someone other than the employee request a reasonable

accommodation on behalf of an individual with a disability?

Yes, a family member, friend, health professional, or other representative

may request a reasonable accommodation on behalf of an individual with a
disability.49 Of course, an employee may refuse to accept an accommodation
that is not needed.

19. Do requests for reasonable accommodation need to be in writing?

No. Requests for reasonable accommodation do not need to be in writing.

Employees may request accommodations in conversation or may use any other
mode of communication.50

20. When should an individual with a disability request a reasonable

accommodation to do the job?

An individual with a disability is not required to request a reasonable

accommodation at the beginning of employment. S/he may request a
reasonable accommodation at any time during employment.51

21. May an employer ask an employee for documentation when the employee
requests reasonable accommodation for the job?

Yes. When the need for accommodation is not obvious, an employer may ask
an employee for reasonable documentation about his/her disability and
functional limitations. The employer is entitled to know that the
employee has a covered disability for which s/he needs a reasonable
accommodation.52 A variety of health professionals may provide such
documentation with regard to psychiatric disabilities.53

Example A: An employee asks for time off because he is

"depressed and stressed." Although this statement is sufficient to put
the employer on notice that he is requesting accommodation,54 the
employee's need for accommodation is not obvious based on this statement
alone. Accordingly, the employer may require reasonable documentation that
the employee has a disability within the meaning of the ADA and, if he has
such a disability, that the functional limitations of the disability
necessitate time off.

Example B: Same as Example A, except that the employer

requires the employee to submit all of the records from his health
professional regarding his mental health history, including materials that
are not relevant to disability and reasonable accommodation under the ADA.
This is not a request for reasonable documentation. All of these records
are not required to determine if the employee has a disability as defined
by the ADA and needs the requested reasonable accommodation because of his
disability-related functional limitations. As one alternative, in order
to determine the scope of its ADA obligations, the employer may ask the
employee to sign a limited release allowing the employer to submit a list
of specific questions to the employee's health care professional about his
condition and need for reasonable accommodation.
22. May an employer require an employee to go to a health care
professional of the employer's (rather than the employee's) choice for
purposes of documenting need for accommodation and disability?

The ADA does not prevent an employer from requiring an employee to go to

an appropriate health professional of the employer's choice if the
employee initially provides insufficient information to substantiate that
s/he has an ADA disability and needs a reasonable accommodation. Of
course, any examination must be job-related and consistent with business
necessity.55 If an employer requires an employee to go to a health
professional of the employer's choice, the employer must pay all costs
associated with the visit(s).

SELECTED TYPES OF REASONABLE ACCOMMODATION

Reasonable accommodations for individuals with disabilities must be

determined on a case-by-case basis because workplaces and jobs vary, as do
people with disabilities. Accommodations for individuals with psychiatric
disabilities may involve changes to workplace policies, procedures, or
practices. Physical changes to the workplace or extra equipment also may
be effective reasonable accommodations for some people.

In some instances, the precise nature of an effective accommodation for an

individual may not be immediately apparent. Mental health professionals,
including psychiatric rehabilitation counselors, may be able to make
suggestions about particular accommodations and, of equal importance, help
employers and employees communicate effectively about reasonable
accommodation.56 The questions below discuss selected types of reasonable
accommodation that may be effective for certain individuals with
psychiatric disabilities.57

23. Does reasonable accommodation include giving an individual with a

disability time off from work or a modified work schedule?

Yes. Permitting the use of accrued paid leave or providing additional

unpaid leave for treatment or recovery related to a disability is a
reasonable accommodation, unless (or until) the employee's absence imposes
an undue hardship on the operation of the employer's business.58 This
includes leaves of absence, occasional leave (e.g., a few hours at a
time), and part-time scheduling.

A related reasonable accommodation is to allow an individual with a

disability to change his/her regularly scheduled working hours, for
example, to work 10 AM to 6 PM rather than 9 AM to 5 PM, barring undue
hardship. Some medications taken for psychiatric disabilities cause
extreme grogginess and lack of concentration in the morning. Depending on
the job, a later schedule can enable the employee to perform essential job
functions.

24. What types of physical changes to the workplace or equipment can

serve as accommodations for people with psychiatric disabilities?

Simple physical changes to the workplace may be effective accommodations

for some individuals with psychiatric disabilities. For example, room
dividers, partitions, or other soundproofing or visual barriers between
workspaces may accommodate individuals who have disability-related
limitations in concentration. Moving an individual away from noisy
machinery or reducing other workplace noise that can be adjusted (e.g.,
lowering the volume or pitch of telephones) are similar reasonable
accommodations. Permitting an individual to wear headphones to block out
noisy distractions also may be effective.

Some individuals who have disability-related limitations in concentration

may benefit from access to equipment like a tape recorder for reviewing
events such as training sessions or meetings.
25. Is it a reasonable accommodation to modify a workplace policy?

Yes. It is a reasonable accommodation to modify a workplace policy when

necessitated by an individual's disability-related limitations, barring
undue hardship.59 For example, it would be a reasonable accommodation to
allow an individual with a disability, who has difficulty concentrating
due to the disability, to take detailed notes during client presentations
even though company policy discourages employees from taking extensive
notes during such sessions.

Example: A retail employer does not allow individuals working

as cashiers to drink beverages at checkout stations. The retailer also
limits cashiers to two 15-minute breaks during an eight-hour shift, in
addition to a meal break. An individual with a psychiatric disability
needs to drink beverages approximately once an hour in order to combat dry
mouth, a side-effect of his psychiatric medication. This individual
requests reasonable accommodation. In this example, the employer should
consider either modifying its policy against drinking beverages at
checkout stations or modifying its policy limiting cashiers to two
15-minute breaks each day plus a meal break, barring undue hardship.

Granting an employee time off from work or an adjusted work schedule as a

reasonable accommodation may involve modifying leave or attendance
procedures or policies. As an example, it would be a reasonable
accommodation to modify a policy requiring employees to schedule vacation
time in advance if an otherwise qualified individual with a disability
needed to use accrued vacation time on an unscheduled basis because of
disability-related medical problems, barring undue hardship.60 In
addition, an employer, in spite of a "no-leave" policy, may, in
appropriate circumstances, be required to provide leave to an employee
with a disability as a reasonable accommodation, unless the provision of
leave would impose an undue hardship.61

26. Is adjusting supervisory methods a form of reasonable accommodation?

Yes. Supervisors play a central role in achieving effective reasonable

accommodations for their employees. In some circumstances, supervisors
may be able to adjust their methods as a reasonable accommodation by, for
example, communicating assignments, instructions, or training by the
medium that is most effective for a particular individual (e.g., in
writing, in conversation, or by electronic mail). Supervisors also may
provide or arrange additional training or modified training materials.

Adjusting the level of supervision or structure sometimes may enable an

otherwise qualified individual with a disability to perform essential job
functions. For example, an otherwise qualified individual with a
disability who experiences limitations in concentration may request more
detailed day-to-day guidance, feedback, or structure in order to perform
his job.62

Example: An employee requests more daily guidance and

feedback as a reasonable accommodation for limitations associated with a
psychiatric disability. In response to his request, the employer consults
with the employee, his health care professional, and his supervisor about
how his limitations are manifested in the office (the employee is unable
to stay focused on the steps necessary to complete large projects) and how
to make effective and practical changes to provide the structure he needs.
As a result of these consultations, the supervisor and employee work out a
long-term plan to initiate weekly meetings to review the status of large
projects and identify which steps need to be taken next.

27. Is it a reasonable accommodation to provide a job coach?

Yes. An employer may be required to provide a temporary job coach to

assist in the training of a qualified individual with a disability as a
reasonable accommodation, barring undue hardship.63 An employer also may
be required to allow a job coach paid by a public or private social
service agency to accompany the employee at the job site as a reasonable
accommodation.

28. Is it a reasonable accommodation to make sure that an individual

takes medication as prescribed?

No. Medication monitoring is not a reasonable accommodation. Employers

have no obligation to monitor medication because doing so does not remove
a barrier that is unique to the workplace. When people do not take
medication as prescribed, it affects them on and off the job.

29. When is reassignment to a different position required as a reasonable

accommodation?

In general, reassignment must be considered as a reasonable accommodation

when accommodation in the present job would cause undue hardship64 or
would not be possible.65 Reassignment may be considered if there are
circumstances under which both the employer and employee voluntarily agree
that it is preferable to accommodation in the present position.66

Reassignment should be made to an equivalent position that is vacant or

will become vacant within a reasonable amount of time. If an equivalent
position is not available, the employer must look for a vacant position at
a lower level for which the employee is qualified. Reassignment is not
required if a vacant position at a lower level is also unavailable.

CONDUCT

Maintaining satisfactory conduct and performance typically is not a

problem for individuals with psychiatric disabilities. Nonetheless,
circumstances arise when employers need to discipline individuals with
such disabilities for misconduct.

30. May an employer discipline an individual with a disability for

violating a workplace conduct standard if the misconduct resulted from a
disability?

Yes, provided that the workplace conduct standard is job-related for the
position in question and is consistent with business necessity.67 For
example, nothing in the ADA prevents an employer from maintaining a
workplace free of violence or threats of violence, or from disciplining an
employee who steals or destroys property. Thus, an employer may
discipline an employee with a disability for engaging in such misconduct
if it would impose the same discipline on an employee without a
disability.68 Other conduct standards, however, may not be job-related for
the position in question and consistent with business necessity. If they
are not, imposing discipline under them could violate the ADA.

Example A: An employee steals money from his employer. Even

if he asserts that his misconduct was caused by a disability, the employer
may discipline him consistent with its uniform disciplinary policies
because the individual violated a conduct standard -- a prohibition
against employee theft -- that is job-related for the position in question
and consistent with business necessity.

Example B: An employee at a clinic tampers with and

incapacitates medical equipment. Even if the employee explains that she
did this because of her disability, the employer may discipline her
consistent with its uniform disciplinary policies because she violated a
conduct standard -- a rule prohibiting intentional damage to equipment --
that is job-related for the position in question and consistent with
business necessity. However, if the employer disciplines her even though
it has not disciplined people without disabilities for the same
misconduct, the employer would be treating her differently because of
disability in violation of the ADA.

Example C: An employee with a psychiatric disability works in

a warehouse loading boxes onto pallets for shipment. He has no customer
contact and does not come into regular contact with other employees. Over
the course of several weeks, he has come to work appearing increasingly
disheveled. His clothes are ill-fitting and often have tears in them. He
also has become increasingly anti-social. Coworkers have complained that
when they try to engage him in casual conversation, he walks away or gives
a curt reply. When he has to talk to a coworker, he is abrupt and rude.
His work, however, has not suffered. The employer's company handbook
states that employees should have a neat appearance at all times. The
handbook also states that employees should be courteous to each other.
When told that he is being disciplined for his appearance and treatment of
coworkers, the employee explains that his appearance and demeanor have
deteriorated because of his disability which was exacerbated during this
time period.

The dress code and coworker courtesy rules are not job-related for the
position in question and consistent with business necessity because this
employee has no customer contact and does not come into regular contact
with other employees. Therefore, rigid application of these rules to this
employee would violate the ADA.

31. Must an employer make reasonable accommodation for an individual with

a disability who violated a conduct rule that is job-related for the
position in question and consistent with business necessity?

An employer must make reasonable accommodation to enable an otherwise

qualified individual with a disability to meet such a conduct standard in
the future, barring undue hardship.69 Because reasonable accommodation is
always prospective, however, an employer is not required to excuse past
misconduct.70

Example A: A reference librarian frequently loses her temper

at work, disrupting the library atmosphere by shouting at patrons and
coworkers. After receiving a suspension as the second step in uniform,
progressive discipline, she discloses her disability, states that it
causes her behavior, and requests a leave of absence for treatment. The
employer may discipline her because she violated a conduct standard -- a
rule prohibiting disruptive behavior towards patrons and coworkers -- that
is job-related for the position in question and consistent with business
necessity. The employer, however, must grant her request for a leave of
absence as a reasonable accommodation, barring undue hardship, to enable
her to meet this conduct standard in the future.

Example B: An employee with major depression is often late

for work because of medication side-effects that make him extremely groggy
in the morning. His scheduled hours are 9:00 AM to 5:30 PM, but he
arrives at 9:00, 9:30, 10:00 or even 10:30 on any given day. His job
responsibilities involve telephone contact with the company's traveling
sales representatives, who depend on him to answer urgent marketing
questions and expedite special orders. The employer disciplines him for
tardiness, stating that continued failure to arrive promptly during the
next month will result in termination of his employment. The individual
then explains that he was late because of a disability and needs to work
on a later schedule. In this situation, the employer may discipline the
employee because he violated a conduct standard addressing tardiness that
is job-related for the position in question and consistent with business
necessity. The employer, however, must consider reasonable accommodation,
barring undue hardship, to enable this individual to meet this standard in
the future. For example, if this individual can serve the company's sales
representatives by regularly working a schedule of 10:00 AM to 6:30 PM, a
reasonable accommodation would be to modify his schedule so that he is not
required to report for work until 10:00 AM.

Example C: An employee has a hostile altercation with his

supervisor and threatens the supervisor with physical harm. The employer
immediately terminates the individual's employment, consistent with its
policy of immediately terminating the employment of anyone who threatens a
supervisor. When he learns that his employment has been terminated, the
employee asks the employer to put the termination on hold and to give him
a month off for treatment instead. This is the employee's first request
for accommodation and also the first time the employer learns about the
employee's disability. The employer is not required to rescind the
discharge under these circumstances, because the employee violated a
conduct standard -- a rule prohibiting threats of physical harm against
supervisors -- that is job-related for the position in question and
consistent with business necessity. The employer also is not required to
offer reasonable accommodation for the future because this individual is
no longer a qualified individual with a disability. His employment was
terminated under a uniformly applied conduct standard that is job-related
for the position in question and consistent with business necessity.71

32. How should an employer deal with an employee with a disability who is
engaging in misconduct because s/he is not taking his/her medication?

The employer should focus on the employee's conduct and explain to the
employee the consequences of continued misconduct in terms of uniform
disciplinary procedures. It is the employee's responsibility to decide
about medication and to consider the consequences of not taking
medication.72

DIRECT THREAT

Under the ADA, an employer may lawfully exclude an individual from

employment for safety reasons only if the employer can show that
employment of the individual would pose a "direct threat."73 Employers
must apply the "direct threat" standard uniformly and may not use safety
concerns to justify exclusion of persons with disabilities when persons
without disabilities would not be excluded in similar circumstances.74

The EEOC's ADA regulations explain that "direct threat" means "a
significant risk of substantial harm to the health or safety of the
individual or others that cannot be eliminated or reduced by reasonable
accommodation."75 A "significant" risk is a high, and not just a slightly
increased, risk.76 The determination that an individual poses a "direct
threat" must be based on an individualized assessment of the individual's
present ability to safely perform the functions of the job, considering a
reasonable medical judgment relying on the most current medical knowledge
and/or the best available objective evidence.77 With respect to the
employment of individuals with psychiatric disabilities, the employer must
identify the specific behavior that would pose a direct threat.78 An
individual does not pose a "direct threat" simply by virtue of having a
history of psychiatric disability or being treated for a psychiatric
disability.79

33. Does an individual pose a direct threat in operating machinery solely

because s/he takes medication that may as a side effect diminish
concentration and/or coordination for some people?

No. An individual does not pose a direct threat solely because s/he takes
a medication that may diminish coordination or concentration for some
people as a side effect. Whether such an individual poses a direct threat
must be determined on a case-by-case basis, based on a reasonable medical
judgment relying on the most current medical knowledge and/or on the best
available objective evidence. Therefore, an employer must determine the
nature and severity of this individual's side effects, how those side
effects influence his/her ability to safely operate the machinery, and
whether s/he has had safety problems in the past when operating the same
or similar machinery while taking the medication. If a significant risk
of substantial harm exists, then an employer must determine if there is a
reasonable accommodation that will reduce or eliminate the risk.

Example: An individual receives an offer for a job in which

she will operate an electric saw, conditioned on a post-offer medical
examination. In response to questions at this medical examination, the
individual discloses her psychiatric disability and states that she takes
a medication to control it. This medication is known to sometimes affect
coordination and concentration. The company doctor determines that the
individual experiences negligible side effects from the medication because
she takes a relatively low dosage. She also had an excellent safety
record at a previous job, where she operated similar machinery while
taking the same medication. This individual does not pose a direct
threat.

34. When can an employer refuse to hire someone based on his/her history
of violence or threats of violence?

An employer may refuse to hire someone based on his/her history of

violence or threats of violence if it can show that the individual poses a
direct threat. A determination of "direct threat" must be based on an
individualized assessment of the individual's present ability to safely
perform the functions of the job, considering the most current medical
knowledge and/or the best available objective evidence. To find that an
individual with a psychiatric disability poses a direct threat, the
employer must identify the specific behavior on the part of the individual
that would pose the direct threat. This includes an assessment of the
likelihood and imminence of future violence.

Example: An individual applies for a position with Employer X.

When Employer X checks his employment background, she learns that he was
terminated two weeks ago by Employer Y, after he told a coworker that he
would get a gun and "get his supervisor if he tries anything again."
Employer X also learns that these statements followed three months of
escalating incidents in which this individual had had several altercations
in the workplace, including one in which he had to be restrained from
fighting with a coworker. He then revealed his disability to Employer Y.
After being given time off for medical treatment, he continued to have
trouble controlling his temper and was seen punching the wall outside his
supervisor's office. Finally, he made the threat against the supervisor
and was terminated. Employer X learns that, since then, he has not
received any further medical treatment. Employer X does not hire him,
stating that this history indicates that he poses a direct threat.

This individual poses a direct threat as a result of his disability

because his recent overt acts and statements (including an attempted fight
with a coworker, punching the wall, and making a threatening statement
about the supervisor) support the conclusion that he poses a "significant
risk of substantial harm." Furthermore, his prior treatment had no effect
on his behavior, he had received no subsequent treatment, and only two
weeks had elapsed since his termination, all supporting a finding of
direct threat.

35. Does an individual who has attempted suicide pose a direct threat
when s/he seeks to return to work?

No, in most circumstances. As with other questions of direct threat, an

employer must base its determination on an individualized assessment of
the person's ability to safely perform job functions when s/he returns to
work. Attempting suicide does not mean that an individual poses an
imminent risk of harm to him/herself when s/he returns to work. In
analyzing direct threat (including the likelihood and imminence of any
potential harm), the employer must seek reasonable medical judgments
relying on the most current medical knowledge and/or the best available
factual evidence concerning the employee.

Example: An employee with a known psychiatric disability was

hospitalized for two suicide attempts, which occurred within several weeks
of each other. When the employee asked to return to work, the employer
allowed him to return pending an evaluation of medical reports to
determine his ability to safely perform his job. The individual's
therapist and psychiatrist both submitted documentation stating that he
could safely perform all of his job functions. Moreover, the employee
performed his job safely after his return, without reasonable
accommodation. The employer, however, terminated the individual's
employment after evaluating the doctor's and therapist's reports, without
citing any contradictory medical or factual evidence concerning the
employee's recovery. Without more evidence, this employer cannot support
its determination that this individual poses a direct threat.80

PROFESSIONAL LICENSING

Individuals may have difficulty obtaining state-issued professional

licenses if they have, or have a record of, a psychiatric disability.
When a psychiatric disability results in denial or delay of a professional
license, people may lose employment opportunities.

36. Would an individual have grounds for filing an ADA charge if an

employer refused to hire him/her (or revoked a job offer) because s/he did
not have a professional license due to a psychiatric disability?

If an individual filed a charge on these grounds, EEOC would investigate

to determine whether the professional license was required by law for the
position at issue, and whether the employer in fact did not hire the
individual because s/he lacked the license. If the employer did not hire
the individual because s/he lacked a legally-required professional
license, and the individual claims that the licensing process
discriminates against individuals with psychiatric disabilities, EEOC
would coordinate with the Department of Justice, Civil Rights Division,
Disability Rights Section, which enforces Title II of the ADA covering
state licensing requirements.

1 42 U.S.C. §§ 12101-12117, 12201-12213 (1994) (codified as amended).

2 H.R. Rep. No. 101-485, pt. 3, at 31-32 (1990) [hereinafter House

Judiciary Report].

3 Between July 26, 1992, and September 30, 1996, approximately 12.7% of
ADA charges filed with EEOC were based on emotional or psychiatric
impairment. These included charges based on anxiety disorders,
depression, bipolar disorder (manic depression), schizophrenia, and other
psychiatric impairments.

4 The analysis in this guidance applies to federal sector complaints of

non-affirmative action employment discrimination arising under section 501
of the Rehabilitation Act of 1973. 29 U.S.C. § 791(g) (1994). It also
applies to complaints of non-affirmative action employment discrimination
arising under section 503 and employment discrimination under section 504
of the Rehabilitation Act. 29 U.S.C. §§ 793(d), 794(d) (1994).

5 42 U.S.C. § 12102(2) (1994); 29 C.F.R. § 1630.2(g) (1996). See

generally EEOC Compliance Manual § 902, Definition of the Term
"Disability," 8 FEP Manual (BNA) 405:7251 (1995).

6 29 C.F.R. § 1630.2(h)(2) (1996). This ADA regulatory definition also

refers to mental retardation, organic brain syndrome, and specific
learning disabilities. These additional mental conditions, as well as
other neurological disorders such as Alzheimer's disease, are not the
primary focus of this guidance.

7 See, e.g., Boldini v. Postmaster Gen., 928 F. Supp. 125, 130, 5 AD Cas.
(BNA) 11, 14 (D.N.H. 1995) (stating, under section 501 of the
Rehabilitation Act, that "in circumstances of mental impairment, a court
may give weight to a diagnosis of mental impairment which is described in
the Diagnostic and Statistical Manual of Mental Disorders of the American
Psychiatric Association . . . .").

8 These include various sexual behavior disorders, compulsive gambling,

kleptomania, pyromania, and psychoactive substance use disorders resulting
from current illegal use of drugs. 42 U.S.C. § 12211(b) (1994); 29 C.F.R.
§ 1630.3(d) (1996).

9 42 U.S.C. § 12210(a) (1994). However, individuals who are not currently

engaging in the illegal use of drugs and who are participating in, or have
successfully completed, a supervised drug rehabilitation program (or who
have otherwise been successfully rehabilitated) may be covered by the ADA.
Individuals who are erroneously regarded as engaging in the current
illegal use of drugs, but who are not engaging in such use, also may be
covered. Id. at § 12210(b).

Individuals with psychiatric disabilities may, either as part of

their condition or separate from their condition, engage in the illegal
use of drugs. In such cases, EEOC investigators may need to make a
factual determination about whether an employer treated an individual
adversely because of his/her psychiatric disability or because of his/her
illegal use of drugs.

10 See DSM-IV chapter "Other Conditions That May Be a Focus of Clinical

Attention."

11 Individuals who do not have a mental impairment but are treated by

their employers as having a substantially limiting impairment have a
disability as defined by the ADA because they are regarded as having a
substantially limiting impairment. See EEOC Compliance Manual § 902.8,
Definition of the Term "Disability," 8 FEP Manual (BNA) 405:7282 (1995).

12 This discussion refers to the terms "impairment" and "substantially

limit" in the present tense. These references are not meant to imply that
the determinations of whether a condition is an impairment, or of whether
there is substantial limitation, are relevant only to whether an
individual meets the first part of the definition of "disability," i.e.,
actually has a physical or mental impairment that substantially limits a
major life activity. These determinations also are relevant to whether an
individual has a record of a substantially limiting impairment or is
regarded as having a substantially limiting impairment. See id. §§ 902.7,
902.8, Definition of the Term "Disability," 8 FEP Manual (BNA)
405:7276-78, 7281 (1995).

13 Id. § 902.2(c)(4), Definition of the Term "Disability," 8 FEP Manual

(BNA) 405:7258 (1995).

14 42 U.S.C. § 12102(2)(A) (1994); 29 C.F.R. § 1630.2(g)(1) (1996). See

also EEOC Compliance Manual § 902.3, Definition of the Term "Disability,"
8 FEP Manual (BNA) 405:7261 (1995).

15 Interacting with others, as a major life activity, is not substantially

limited just because an individual is irritable or has some trouble
getting along with a supervisor or coworker.

16 Sleeping is not substantially limited just because an individual has

some trouble getting to sleep or occasionally sleeps fitfully.

17 See 29 C.F.R. pt. 1630 app. § 1630.2(j) (1996) ("[i]f an individual is

not substantially limited with respect to any other major life activity,
the individual's ability to perform the major life activity of working
should be considered . . . . "); see also EEOC Compliance Manual §
902.4(c)(2), Definition of the Term "Disability," 8 FEP Manual (BNA)
405:7266 (1995).

18 42 U.S.C. § 12102(2) (1994).

19 See generally EEOC Compliance Manual § 902.4, Definition of the Term

"Disability," 8 FEP Manual (BNA) 405:7262 (1995).

20 See 29 C.F.R. § 1630.2(j) (1996).

21 S. Rep. No. 101-116, at 23 (1989); H.R. Rep. No. 101-485, pt. 2, at 52

(1990); House Judiciary Report, supra n.2, at 28-29. See also 29 C.F.R.
pt. 1630 app. § 1630.2(j) (1996).

22 ADA cases in which courts have disregarded the positive effects of

medications or other treatment in the determination of disability include
Canon v. Clark, 883 F. Supp. 718, 4 AD Cas. (BNA) 734 (S.D. Fla. 1995)
(finding that individual with insulin-dependent diabetes stated an ADA
claim), and Sarsycki v. United Parcel Ser., 862 F. Supp. 336, 340, 3 AD
Cas. (BNA) 1039 (W.D. Okla. 1994) (stating that substantial limitation
should be evaluated without regard to medication and finding that an
individual with insulin-dependent diabetes had a disability under the
ADA). Pertinent Rehabilitation Act cases in which courts have made
similar determinations include Liff v. Secretary of Transp., 1994 WL
579912, at *3-*4 (D.D.C. 1994) (deciding under the Rehabilitation Act,
after acknowledging pertinent ADA guidance, that depression controlled by
medication is a disability), and Gilbert v. Frank, 949 F.2d 637, 641, 2 AD
Cas. (BNA) 60 (2d Cir. 1991) (determining under the Rehabilitation Act
that an individual who could not function without kidney dialysis had a
substantially limiting impairment).

Cases in which courts have found that individuals are not

substantially limited after considering the positive effects of medication
are, in the Commission's view, incorrectly decided. See, e.g., Mackie v.
Runyon, 804 F. Supp. 1508,1510-11, 2 AD Cas. (BNA) 260 (M.D. Fla. 1992)
(holding under section 501 of the Rehabilitation Act that bipolar disorder
stabilized by medication is not substantially limiting); Chandler v. City
of Dallas, 2 F.3d 1385, 1390-91, 2 AD Cas. (BNA) 1326 (5th Cir. 1993)
(holding under section 504 of the Rehabilitation Act that an individual
with insulin-dependent diabetes did not have a disability), cert.
denied,114 S. Ct. 1386, 3 AD Cas. (BNA) 512 (1994).

23 Some individuals do not experience renewed symptoms when they stop

taking medication. These individuals are still covered by the ADA,
however, if they have a record of a substantially limiting impairment
(i.e., if their psychiatric impairment was sufficiently severe and
long-lasting to be substantially limiting).

24 If medications cause negative side effects, these side effects should

be considered in assessing whether the individual is substantially
limited. See, e.g., Guice-Mills v. Derwinski, 967 F.2d 794, 2 AD Cas.
(BNA) 187 (2d Cir. 1992).

25 EEOC Compliance Manual § 902.4(d), Definition of the Term "Disability,"

8 FEP Manual (BNA) 405:7273 (1995).

26 Id., 8 FEP Manual (BNA) 405:7271.

27 See, e.g., Clark v. Virginia Bd. of Bar Exam'rs, 861 F. Supp. 512, 3 AD
Cas. (BNA) 1066 (E.D. Va. 1994) (vacating its earlier ruling (at 3 AD Cas.
(BNA) 780) that plaintiff's recurrent major depression did not constitute
a "disability" under the ADA).

28 29 C.F.R. § 1630.2(j)(ii) (1996); EEOC Compliance Manual§ 902.3(b),

Definition of the Term "Disability," 8 FEP Manual (BNA) 405:7261 (1995).

29 Substantial limitation in concentrating also may be associated with

learning disabilities, neurological disorders, and physical trauma to the
brain (e.g., stroke, brain tumor, or head injury in a car accident).
Although this guidance does not focus on these particular impairments, the
analysis of basic ADA issues is consistent regardless of the nature of the
condition.

30 A 1994 survey of 1,000 American adults reports that 71% averaged 5-8
hours of sleep a night on weeknights and that 55% averaged 5-8 hours a
night on weekends (with 37% getting more than 8 hours a night on
weekends). See The Cutting Edge: Vital Statistics -- America's Sleep
Habits, Washington Post, May 24, 1994, Health Section at 5.

31 See 42 U.S.C. § 12112(d)(2) (1994); 29 C.F.R. § 1630.13(a) (1996). See

also EEOC Enforcement Guidance: Preemployment Disability-Related Questions
and Medical Examinations at 4, 8 FEP Manual (BNA) 405:7192 (1995).
32 Enforcement Guidance: Preemployment Disability-Related Questions and
Medical Examinations at 6, 8 FEP Manual (BNA) 405:7193 (1995).

33 When a primary health care professional supplies documentation about a

psychiatric disability, his/her credibility depends on how well s/he knows
the individual and on his/her knowledge about the psychiatric disability.

34 Important information about an applicant's functional limitations also

may be obtained from non-professionals, such as the applicant, his/her
family members, and friends.

35 In response to the employer's request for documentation, the applicant

may elect to revoke the request for accommodation and to take the test in
the reception area. In these circumstances, where the request for
reasonable accommodation has been withdrawn, the employer cannot continue
to insist on obtaining the documentation.

36 EEOC Enforcement Guidance: Preemployment Disability-RelatedQuestions

and Medical Examinations at 6-7, 8 FEP Manual (BNA) 405:7193-94 (1995).

37 If an employer uses the results of these inquiries or examinations to

screen out an individual because of disability, the employer must prove
that the exclusionary criteria are job-related and consistent with
business necessity, and cannot be met with reasonable accommodation, in
order to defend against a charge of employment discrimination. 42 U.S.C.
§ 12112(b)(6) (1994); 29 C.F.R.§§ 1630.10, 1630.14(b)(3), 1630.15(b)
(1996).

38 42 U.S.C. § 12112(d)(4) (1994); 29 C.F.R. § 1630.14(c) (1996).

39 A "qualified" individual with a disability is one who can perform the

essential functions of a position with or without reasonable
accommodation. 42 U.S.C. § 12111(8) (1994). An employer does not have to
lower production standards, whether qualitative or quantitative, to enable
an individual with a disability to perform an essential function. See 29
C.F.R. pt. 1630 app. § 1630.2(n) (1996).

40 29 C.F.R. § 1630.15(e) (1996) ("It may be a defense to a charge of

discrimination . . . that a challenged action is required or necessitated
by another Federal law or regulation . . . .").

41 There may be additional situations which could meet the "job-related

and consistent with business necessity" standard. For example, periodic
medical examinations for public safety positions that are narrowly
tailored to address specific job-related concerns and are shown to be
consistent with business necessity would be permissible.

42 Of course, an employer would be justified in taking disciplinary action

in these circumstances.

43 For a discussion of other confidentiality issues, see EEOC Enforcement

Guidance: Preemployment Disability-Related Questions and Medical
Examinations at 21-23, 8 FEP Manual (BNA) 405:7201-02 (1995).

44 42 U.S.C. § 12112(d)(3)(B), (4)(C) (1994); 29 C.F.R. § 1630.14(b)(1)

(1996). The Commission has interpreted the ADA to allow employers to
disclose medical information to state workers' compensation offices, state
second injury funds, or workers' compensation insurance carriers in
accordance with state workers' compensation laws. 29 C.F.R. pt. 1630 app.
§ 1630.14(b) (1996). The Commission also has interpreted the ADA to
permit employers to use medical information for insurance purposes. Id.
See also EEOC Enforcement Guidance: Preemployment Disability-Related
Questions and Medical Examinations at 21 nn.24, 25, 8 FEP Manual (BNA)
405:7201 nn.24, 25 (1995).

45 See 42 U.S.C. §§ 12111(9), 12112(b)(5)(A) (1994); 29 C.F.R.§ 1630.2(o),

.9 (1996); 29 C.F.R. pt. 1630 app. § 1630.9 (1996).

46 Schmidt v. Safeway, Inc., 864 F. Supp. 991, 3 AD Cas. (BNA) 1141 (D.
Or. 1994) (an employee's request for reasonable accommodation need not use
"magic words" and can be in plain English). See Bultemeyer v. Ft. Wayne
Community Schs., 6 AD Cas. (BNA) 67 (7th Cir. 1996) (an employee with a
known psychiatric disability requested reasonable accommodation by stating
that he could not do a particular job and by submitting a note from his
psychiatrist).

47 See Question 21 infra about employers requesting documentation after

receiving a request for reasonable accommodation.

48 In the Commission's view, Miller v. Nat'l Cas. Co., 61 F.3d 627, 4 AD

Cas. (BNA) 1089 (8th Cir. 1995) was incorrectly decided. The court in
Miller held that the employer was not alerted to Miller's disability and
need for accommodation despite the fact that Miller's sister phoned the
employer repeatedly and informed it that Miller was falling apart mentally
and that the family was trying to get her into a hospital. See also
Taylor v. Principal Financial Group, 5 AD Cas. (BNA) 1653(5th Cir. 1996).

49 Cf. Beck v. Univ. of Wis., 75 F.3d 1130, 5 AD Cas. (BNA) 304(7th Cir.
1996) (assuming, without discussion, that a doctor's note requesting
reasonable accommodation on behalf of his patient triggered the reasonable
accommodation process); Schmidt v. Safeway, Inc., 864 F. Supp. 991, 3 AD
Cas. (BNA) 1141 (D. Or. 1994) (stating that a doctor need not be expressly
authorized to request accommodation on behalf of an employee in order to
make a valid request).

In addition, because the reasonable accommodation process presumes open

communication between the employer and the employee with the disability,
the employer should be receptive to any relevant information or requests
it receives from a third party acting on the employee's behalf. 29 C.F.R.
pt. 1630 app. § 1630.9 (1996).

50 Although individuals with disabilities are not required to keep

records, they may find it useful to document requests for reasonable
accommodation in the event there is a dispute about whether or when they
requested accommodation. Of course, employers must keep all employment
records, including records of requests for reasonable accommodation, for
one year from the making of the record or the personnel action involved,
whichever occurs later. 29 C.F.R. § 1602.14 (1996).

51 As a practical matter, it may be in the employee's interest to request

a reasonable accommodation before performance suffers or conduct problems
occur.

52 EEOC Enforcement Guidance: Preemployment Disability-Related Questions

and Medical Examinations at 6, 8 FEP Manual (BNA) 405:7193 (1995).

53 See supra nn.32-34 and accompanying text. See also Bultemeyer v. Ft.
Wayne Community Schs., 6 AD Cas. (BNA) 67 (7th Cir. 1996) (stating that,
if employer found the precise meaning of employee's request for reasonable
accommodation unclear, employer should have spoken to the employee or his
psychiatrist, thus properly engaging in the interactive process).

54 See Question 17, Example A, supra.

55 Employers also may consider alternatives like having their health

professional consult with the employee's health professional, with the
employee's consent.

56 The Job Accommodation Network (JAN) also provides advice free-of-charge

to employers and employees contemplating reasonable accommodation. JAN is
a service of the President's Committee on Employment of People with
Disabilities which, in turn, is funded by the U.S. Department of Labor.
JAN can be reached at 1-800-ADA-WORK.

57 Some of the accommodations discussed in this section also may prove

effective for individuals with traumatic brain injuries, stroke, and other
mental disabilities. As a general matter, a covered employer must provide
reasonable accommodation to the known physical or mental limitations of an
otherwise qualified individual with a disability, barring undue hardship.
42 U.S.C. § 12112(b)(5)(A) (1994).

58 29 C.F.R. pt. 1630 app. § 1630.2(o) (1996). Courts have recognized

leave as a reasonable accommodation. See, e.g., Vande Zande v. Wis. Dep't
of Admin., 44 F.3d 538, 3 AD Cas. (BNA) 1636 (7th Cir. 1995) (defendant
had duty to accommodate plaintiff's pressure ulcers resulting from her
paralysis which required her to stay home for several weeks); Vializ v.
New York City Bd. of Educ., 1995 WL 110112, 4 AD Cas. (BNA) 345 (S.D.N.Y.
1995) (plaintiff stated claim under ADA where she alleged that she would
be able to return to work after back injury if defendant granted her a
temporary leave of absence); Schmidt v. Safeway, Inc., 864 F. Supp. 991, 3
AD Cas. (BNA) 1141 (D. Or. 1994) ("[A] leave of absence to obtain medical
treatment is a reasonable accommodation if it is likely that, following
treatment, [the employee] would have been able to safely perform his
duties . . . .").

59 42 U.S.C. § 12111(9)(B) (1994); 29 C.F.R. § 1630.2(o)(2)(ii) (1996).

60 See Dutton v. Johnson County Bd., 1995 WL 337588, 3 AD Cas. (BNA) 1614
(D. Kan. 1995) (it was a reasonable accommodation to permit an individual
with a disability to use unscheduled vacation time to cover absence for
migraine headaches, where that did not pose an undue hardship and employer
knew about the migraine headaches and the need for accommodation).

61 See 29 C.F.R. pt. 1630 app. § 1630.15(b), (c) (1996).

62 Reasonable accommodation, however, does not require lowering standards

or removing essential functions of the job. Bolstein v. Reich, 1995 WL
46387, 3 AD Cas. (BNA) 1761 (D.D.C. 1995) (attorney with chronic
depression and severe personality disturbance was not a qualified
individual with a disability because his requested accommodations of more
supervision, less complex assignments, and the exclusion of appellate work
would free him of the very duties that justified his GS-14 grade), motion
for summary affirmance granted, 1995 WL 686236 (D.C. Cir. 1995). The
court in Bolstein noted that the plaintiff objected to a reassignment to a
lower grade in which he could have performed the essential functions of
the position. 1995 WL 46387, * 4, 3 AD Cas. (BNA) 1761, 1764 (D.D.C.
1995).

63 See 29 C.F.R. pt. 1630 app. § 1630.9 (1996) (discussing supported

employment); U.S. Equal Employment Opportunity Commission, "A Technical
Assistance Manual on the Employment Provisions (Title I) of the Americans
with Disabilities Act," at 3.4, 8 FEP Manual (BNA) 405:7001 (1992)
[hereinafter Technical Assistance Manual]. A job coach is a professional
who assists individuals with severe disabilities with job placement and
job training.

64 For example, it may be an undue hardship to provide extra supervision

as a reasonable accommodation in the present job if the employee's current
supervisor is already very busy supervising several other individuals and
providing direct service to the public.

65 42 U.S.C. § 12111(9)(B) (1994). For example, it may not be possible to

accommodate an employee in his present position if he works as a
salesperson on the busy first floor of a major department store and needs
a reduction in visual distractions and ambient noise as a reasonable
accommodation.

See EEOC Enforcement Guidance: Workers' Compensation and the ADA

at 17, 8 FEP Manual (BNA) 405:7399-7400 (1996) (where an employee can no
longer perform the essential functions of his/her original position, with
or without a reasonable accommodation, because of a disability, an
employer must reassign him/her to an equivalent vacant position for which
s/he is qualified, absent undue hardship).

66 Technical Assistance Manual, supra note 63, at 3.10(5), 8 FEP Manual

(BNA) 405:7011-12 (reassignment to a vacant position as a reasonable
accommodation); see also 42 U.S.C. § 12111(9)(B) (1994); 29 C.F.R. §
1630.2(o)(2)(ii) (1996).
67 42 U.S.C. § 12112(b)(6) (1994); 29 C.F.R. § 1630.10, .15(c) (1996).

68 See EEOC Compliance Manual § 902.2, n.11, Definition of the Term

"Disability," 8 FEP Manual (BNA) 405:7259, n.11 (1995) (an employer "does
not have to excuse . . . misconduct, even if the misconduct results from
an impairment that rises to the level of a disability, if it does not
excuse similar misconduct from its other employees"); see 56 Fed. Reg.
35,733 (1991) (referring to revisions to proposed ADA rule that "clarify
that employers may hold all employees, disabled (including those disabled
by alcoholism or drug addiction) and nondisabled, to the same performance
and conduct standards").

69 See 29 C.F.R. § 1630.15(d) (1996).

70 Therefore, it may be in the employee's interest to request a reasonable

accommodation before performance suffers or conduct problems occur. See
Question 20 supra.

71 Regardless of misconduct, an individual with a disability must be

allowed to file a grievance or appeal challenging his/her termination when
that is a right normally available to other employees.

72 If the employee requests reasonable accommodation in order to address

the misconduct, the employer must grant the request, subject to undue
hardship.

73 See 42 U.S.C. § 12113(b) (1994).

74 29 C.F.R. pt. 1630 app. § 1630.2(r) (1996).

75 29 C.F.R. § 1630.2(r) (1996). To determine whether an individual would

pose a direct threat, the factors to be considered include: (1) duration
of the risk; (2) nature and severity of the potential harm; (3) likelihood
that the potential harm will occur; and (4) imminence of the potential
harm. Id.

76 29 C.F.R. pt. 1630 app. § 1630.2(r) (1996).

77 29 C.F.R. § 1630.2(r) (1996).

78 29 C.F.R. pt. 1630 app. § 1630.2(r) (1996).

79 House Judiciary Report, supra n.2, at 45.

80 Cf. Ofat v. Ohio Civ. Rights Comm'n, 1995 WL 310051, 4 AD Cas. (BNA)
753 (Ohio Ct. App. 1995) (finding against employer, under state law, on
issue of whether employee who had panic disorder with agoraphobia could
safely return to her job after disability-related leave, where employer
presented no expert evidence about employee's disability or its effect on
her ability to safely perform her job but only provided copies of pages
from a medical text generally discussing the employee's illness).

This page was last modified on May 09, 2019.

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The U.S. Equal Employment Opportunity Commission

Number
EEOC NOTICE 915.002

October 17, 2002

1. SUBJECT: EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the
Americans with Disabilities Act
2. PURPOSE: This enforcement guidance supersedes the enforcement guidance issued by the Commission
on 03/01/99. Most of the original guidance remains the same, but limited changes have been made as a
result of: (1) the Supreme Court's decision in US Airways, Inc. v. Barnett, 535 U.S., 122 S. Ct. 1516
(2002), and (2) the Commission's issuance of new regulations under section 501 of the Rehabilitation
Act. The major changes in response to the Barnett decision are found on pages 4-5, 44-45, and 61-62.
In addition, minor changes were made to certain footnotes and the Instructions for Investigators as a
result of the Barnett decision and the new section 501 regulations.
3. EFFECTIVE DATE: Upon receipt.
4. EXPIRATION DATE: As an exception to EEOC Order 205.001, Appendix B, Attachment 4, . a(5), this
Notice will remain in effect until rescinded or superseded.
5. ORIGINATOR: ADA Division, Office of Legal Counsel.
6. INSTRUCTIONS: File after Section 902 of Volume II of the Compliance Manual.

Enforcement Guidance:
Reasonable Accommodation and Undue Hardship Under the
Americans with Disabilities Act
Table of Contents
Notice Concerning The
INTRODUCTION Americans With
GENERAL PRINCIPLES Disabilities Act
Amendments Act Of
REQUESTING REASONABLE ACCOMMODATION
2008
REASONABLE ACCOMMODATION AND JOB APPLICANTS
This document was issued prior
REASONABLE ACCOMMODATION RELATED TO THE BENEFITS AND to enactment of the Americans
PRIVILEGES OF EMPLOYMENT with Disabilities Act Amendments
Act of 2008 (ADAAA), which took
TYPES OF REASONABLE ACCOMMODATIONS RELATED TO JOB PERFORMANCE
effect on January 1, 2009. The
JOB RESTRUCTURING ADAAA broadened the statutory
definition of disability, as
LEAVE summarized in this list of specific
changes.
MODIFIED OR PART-TIME SCHEDULE

MODIFIED WORKPLACE POLICIES

REASSIGNMENT

OTHER REASONABLE ACCOMMODATION ISSUES

UNDUE HARDSHIP ISSUES

BURDENS OF PROOF

INSTRUCTIONS FOR INVESTIGATORS

APPENDIX: RESOURCES FOR LOCATING REASONABLE ACCOMMODATIONS

INDEX

INTRODUCTION
This Enforcement Guidance clarifies the rights and responsibilities of employers and individuals with disabilities
regarding reasonable accommodation and undue hardship. Title I of the ADA requires an employer to provide
reasonable accommodation to qualified individuals with disabilities who are employees or applicants for
employment, except when such accommodation would cause an undue hardship. This Guidance sets forth an
employer's legal obligations regarding reasonable accommodation; however, employers may provide more than
the law requires.

This Guidance examines what "reasonable accommodation" means and who is entitled to receive it. The
Guidance addresses what constitutes a request for reasonable accommodation, the form and substance of the
request, and an employer's ability to ask questions and seek documentation after a request has been made.

The Guidance discusses reasonable accommodations applicable to the hiring process and to the benefits and
privileges of employment. The Guidance also covers different types of reasonable accommodations related to
job performance, including job restructuring, leave, modified or part-time schedules, modified workplace
policies, and reassignment. Questions concerning the relationship between the ADA and the Family and Medical
Leave Act (FMLA) are examined as they affect leave and modified schedules. Reassignment issues addressed
include who is entitled to reassignment and the extent to which an employer must search for a vacant position.
The Guidance also examines issues concerning the interplay between reasonable accommodations and conduct
rules.

The final section of this Guidance discusses undue hardship, including when requests for schedule modifications
and leave may be denied.

GENERAL PRINCIPLES
Reasonable Accommodation

Title I of the Americans with Disabilities Act of 1990 (the "ADA")(1) requires an employer(2) to provide
reasonable accommodation to qualified individuals with disabilities who are employees or applicants for
employment, unless to do so would cause undue hardship. "In general, an accommodation is any change in the
work environment or in the way things are customarily done that enables an individual with a disability to enjoy
equal employment opportunities."(3)There are three categories of "reasonable accommodations":

"(i) modifications or adjustments to a job application process that enable a qualified applicant with
a disability to be considered for the position such qualified applicant desires; or

(ii) modifications or adjustments to the work environment, or to the manner or circumstances

under which the position held or desired is customarily performed, that enable a qualified individual
with a disability to perform the essential functions of that position; or

(iii) modifications or adjustments that enable a covered entity's employee with a disability to enjoy
equal benefits and privileges of employment as are enjoyed by its other similarly situated
employees without disabilities."(4)

The duty to provide reasonable accommodation is a fundamental statutory requirement because of the nature
of discrimination faced by individuals with disabilities. Although many individuals with disabilities can apply for
and perform jobs without any reasonable accommodations, there are workplace barriers that keep others from
performing jobs which they could do with some form of accommodation. These barriers may be physical
obstacles (such as inaccessible facilities or equipment), or they may be procedures or rules (such as rules
concerning when work is performed, when breaks are taken, or how essential or marginal functions are
performed). Reasonable accommodation removes workplace barriers for individuals with disabilities.

Reasonable accommodation is available to qualified applicants and employees with disabilities.(5) Reasonable
accommodations must be provided to qualified employees regardless of whether they work part- time or full-
time, or are considered "probationary." Generally, the individual with a disability must inform the employer that
an accommodation is needed.(6)

There are a number of possible reasonable accommodations that an employer may have to provide in
connection with modifications to the work environment or adjustments in how and when a job is performed.
These include:

making existing facilities accessible;

job restructuring;
part-time or modified work schedules;
acquiring or modifying equipment;
changing tests, training materials, or policies;
providing qualified readers or interpreters; and

reassignment to a vacant position.(7)

A modification or adjustment is "reasonable" if it "seems reasonable on its face, i.e., ordinarily or in the run of
cases;"(8) this means it is "reasonable" if it appears to be "feasible" or "plausible."(9)An accommodation also
must be effective in meeting the needs of the individual.(10) In the context of job performance, this means that
a reasonable accommodation enables the individual to perform the essential functions of the position. Similarly,
a reasonable accommodation enables an applicant with a disability to have an equal opportunity to participate
in the application process and to be considered for a job. Finally, a reasonable accommodation allows an
employee with a disability an equal opportunity to enjoy the benefits and privileges of employment that
employees without disabilities enjoy.

Example A: An employee with a hearing disability must be able to contact the public by telephone. The
employee proposes that he use a TTY(11) to call a relay service operator who can then place the telephone call
and relay the conversation between the parties. This is "reasonable" because a TTY is a common device used to
facilitate communication between hearing and hearing-impaired individuals. Moreover, it would be effective in
enabling the employee to perform his job.

Example B: A cashier easily becomes fatigued because of lupus and, as a result, has difficulty making it
through her shift. The employee requests a stool because sitting greatly reduces the fatigue. This
accommodation is reasonable because it is a common-sense solution to remove a workplace barrier being
required to stand when the job can be effectively performed sitting down. This "reasonable" accommodation is
effective because it addresses the employee's fatigue and enables her to perform her job.

Example C: A cleaning company rotates its staff to different floors on a monthly basis. One crew member has a
psychiatric disability. While his mental illness does not affect his ability to perform the various cleaning
functions, it does make it difficult to adjust to alterations in his daily routine. The employee has had significant
difficulty adjusting to the monthly changes in floor assignments. He asks for a reasonable accommodation and
proposes three options: staying on one floor permanently, staying on one floor for two months and then
rotating, or allowing a transition period to adjust to a change in floor assignments. These accommodations are
reasonable because they appear to be feasible solutions to this employee's problems dealing with changes to
his routine. They also appear to be effective because they would enable him to perform his cleaning duties.

There are several modifications or adjustments that are not considered forms of reasonable accommodation.
(12) An employer does not have to eliminate an essential function, i.e., a fundamental duty of the position. This
is because a person with a disability who is unable to perform the essential functions, with or without
reasonable accommodation,(13) is not a "qualified" individual with a disability within the meaning of the ADA.
Nor is an employer required to lower production standards -- whether qualitative or quantitative(14) -- that are
applied uniformly to employees with and without disabilities. However, an employer may have to provide
reasonable accommodation to enable an employee with a disability to meet the production standard. While an
employer is not required to eliminate an essential function or lower a production standard, it may do so if it
wishes.

An employer does not have to provide as reasonable accommodations personal use items needed in
accomplishing daily activities both on and off the job. Thus, an employer is not required to provide an employee
with a prosthetic limb, a wheelchair, eyeglasses, hearing aids, or similar devices if they are also needed off the
job. Furthermore, an employer is not required to provide personal use amenities, such as a hot pot or
refrigerator, if those items are not provided to employees without disabilities. However, items that might
otherwise be considered personal may be required as reasonable accommodations where they are specifically
designed or required to meet job-related rather than personal needs.(15)

Undue Hardship

The only statutory limitation on an employer's obligation to provide "reasonable accommodation" is that no
such change or modification is required if it would cause "undue hardship" to the employer.(16) "Undue
hardship" means significant difficulty or expense and focuses on the resources and circumstances of the
particular employer in relationship to the cost or difficulty of providing a specific accommodation. Undue
hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive,
substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business.(17)
An employer must assess on a case-by-case basis whether a particular reasonable accommodation would cause
undue hardship. The ADA's "undue hardship" standard is different from that applied by courts under Title VII of
the Civil Rights Act of 1964 for religious accommodation.(18)

REQUESTING REASONABLE ACCOMMODATION

1. How must an individual request a reasonable accommodation?

When an individual decides to request accommodation, the individual or his/her representative must let
the employer know that s/he needs an adjustment or change at work for a reason related to a medical
condition. To request accommodation, an individual may use "plain English" and need not mention the
ADA or use the phrase "reasonable accommodation."(19)

Example A: An employee tells her supervisor, "I'm having trouble getting to work at my scheduled
starting time because of medical treatments I'm undergoing." This is a request for a reasonable
accommodation.

Example B: An employee tells his supervisor, "I need six weeks off to get treatment for a back problem."
This is a request for a reasonable accommodation.

Example C: A new employee, who uses a wheelchair, informs the employer that her wheelchair cannot fit
under the desk in her office. This is a request for reasonable accommodation.

Example D: An employee tells his supervisor that he would like a new chair because his present one is
uncomfortable. Although this is a request for a change at work, his statement is insufficient to put the
employer on notice that he is requesting reasonable accommodation. He does not link his need for the
new chair with a medical condition.

While an individual with a disability may request a change due to a medical condition, this request does
not necessarily mean that the employer is required to provide the change. A request for reasonable
accommodation is the first step in an informal, interactive process between the individual and the
employer. In some instances, before addressing the merits of the accommodation request, the employer
needs to determine if the individual's medical condition meets the ADA definition of "disability,"(20) a
prerequisite for the individual to be entitled to a reasonable accommodation.

2. May someone other than the individual with a disability request a reasonable accommodation on behalf of
the individual?
 Yes, a family member, friend, health professional, or other representative may request a reasonable
accommodation on behalf of an individual with a disability.(21) Of course, the individual with a disability
may refuse to accept an accommodation that is not needed.

Example A: An employee's spouse phones the employee's supervisor on Monday morning to inform her
that the employee had a medical emergency due to multiple sclerosis, needed to be hospitalized, and
thus requires time off. This discussion constitutes a request for reasonable accommodation.

Example B: An employee has been out of work for six months with a workers' compensation injury. The
employee's doctor sends the employer a letter, stating that the employee is released to return to work,
but with certain work restrictions. (Alternatively, the letter may state that the employee is released to
return to a light duty position.) The letter constitutes a request for reasonable accommodation.

3. Do requests for reasonable accommodation need to be in writing?

No. Requests for reasonable accommodation do not need to be in writing. Individuals may request
accommodations in conversation or may use any other mode of communication.(22)An employer may
choose to write a memorandum or letter confirming the individual's request. Alternatively, an employer
may ask the individual to fill out a form or submit the request in written form, but the employer cannot
ignore the initial request. An employer also may request reasonable documentation that the individual
has an ADA disability and needs a reasonable accommodation. (See Question 6).

4. When should an individual with a disability request a reasonable accommodation?

An individual with a disability may request a reasonable accommodation at any time during the
application process or during the period of employment. The ADA does not preclude an employee with a
disability from requesting a reasonable accommodation because s/he did not ask for one when applying
for a job or after receiving a job offer. Rather, an individual with a disability should request a reasonable
accommodation when s/he knows that there is a workplace barrier that is preventing him/her, due to a
disability, from effectively competing for a position, performing a job, or gaining equal access to a benefit
of employment.(23) As a practical matter, it may be in an employee's interest to request a reasonable
accommodation before performance suffers or conduct problems occur.

5. What must an employer do after receiving a request for reasonable accommodation?

The employer and the individual with a disability should engage in an informal process to clarify what the
individual needs and identify the appropriate reasonable accommodation.(24) The employer may ask the
individual relevant questions that will enable it to make an informed decision about the request. This
includes asking what type of reasonable accommodation is needed.(25)

The exact nature of the dialogue will vary. In many instances, both the disability and the type of
accommodation required will be obvious, and thus there may be little or no need to engage in any
discussion. In other situations, the employer may need to ask questions concerning the nature of the
disability and the individual's functional limitations in order to identify an effective accommodation. While
the individual with a disability does not have to be able to specify the precise accommodation, s/he does
need to describe the problems posed by the workplace barrier. Additionally, suggestions from the
individual with a disability may assist the employer in determining the type of reasonable accommodation
to provide. Where the individual or the employer are not familiar with possible accommodations, there
are extensive public and private resources to help the employer identify reasonable accommodations
once the specific limitations and workplace barriers have been ascertained.(26)

6. May an employer ask an individual for documentation when the individual requests reasonable
accommodation?

Yes. When the disability and/or the need for accommodation is not obvious, the employer may ask the
individual for reasonable documentation about his/her disability and functional limitations. (27) The
employer is entitled to know that the individual has a covered disability for which s/he needs a
reasonable accommodation.

Reasonable documentation means that the employer may require only the documentation that is needed
to establish that a person has an ADA disability, and that the disability necessitates a reasonable
accommodation. Thus, an employer, in response to a request for reasonable accommodation, cannot ask
 for documentation that is unrelated to determining the existence of a disability and the necessity for an
accommodation. This means that in most situations an employer cannot request a person's complete
medical records because they are likely to contain information unrelated to the disability at issue and the
need for accommodation. If an individual has more than one disability, an employer can request
information pertaining only to the disability that requires a reasonable accommodation.

An employer may require that the documentation about the disability and the functional limitations come
from an appropriate health care or rehabilitation professional. The appropriate professional in any
particular situation will depend on the disability and the type of functional limitation it imposes.
Appropriate professionals include, but are not limited to, doctors (including psychiatrists), psychologists,
nurses, physical therapists, occupational therapists, speech therapists, vocational rehabilitation
specialists, and licensed mental health professionals.

In requesting documentation, employers should specify what types of information they are seeking
regarding the disability, its functional limitations, and the need for reasonable accommodation. The
individual can be asked to sign a limited release allowing the employer to submit a list of specific
questions to the health care or vocational professional.(28)

As an alternative to requesting documentation, an employer may simply discuss with the person the
nature of his/her disability and functional limitations. It would be useful for the employer to make clear to
the individual why it is requesting information, i.e., to verify the existence of an ADA disability and the
need for a reasonable accommodation.

Example A: An employee says to an employer, "I'm having trouble reaching tools because of my shoulder
injury." The employer may ask the employee for documentation describing the impairment; the nature,
severity, and duration of the impairment; the activity or activities that the impairment limits; and the
extent to which the impairment limits the employee's ability to perform the activity or activities (i.e., the
employer is seeking information as to whether the employee has an ADA disability).

Example B: A marketing employee has a severe learning disability. He attends numerous meetings to
plan marketing strategies. In order to remember what is discussed at these meetings he must take
detailed notes but, due to his disability, he has great difficulty writing. The employee tells his supervisor
about his disability and requests a laptop computer to use in the meetings. Since neither the disability
nor the need for accommodation are obvious, the supervisor may ask the employee for reasonable
documentation about his impairment; the nature, severity, and duration of the impairment; the activity
or activities that the impairment limits; and the extent to which the impairment limits the employee's
ability to perform the activity or activities. The employer also may ask why the disability necessitates use
of a laptop computer (or any other type of reasonable accommodation, such as a tape recorder) to help
the employee retain the information from the meetings.(29)

Example C: An employee's spouse phones the employee's supervisor on Monday morning to inform her
that the employee had a medical emergency due to multiple sclerosis, needed to be hospitalized, and
thus requires time off. The supervisor can ask the spouse to send in documentation from the employee's
treating physician that confirms that the hospitalization was related to the multiple sclerosis and provides
information on how long an absence may be required from work.(30)

If an individual's disability or need for reasonable accommodation is not obvious, and s/he refuses to
provide the reasonable documentation requested by the employer, then s/he is not entitled to reasonable
accommodation.(31) On the other hand, failure by the employer to initiate or participate in an informal
dialogue with the individual after receiving a request for reasonable accommodation could result in
liability for failure to provide a reasonable accommodation.(32)

7. May an employer require an individual to go to a health care professional of the employer's (rather than
the employee's) choice for purposes of documenting need for accommodation and disability?

The ADA does not prevent an employer from requiring an individual to go to an appropriate health
professional of the employer's choice if the individual provides insufficient information from his/her
treating physician (or other health care professional) to substantiate that s/he has an ADA disability and
needs a reasonable accommodation. However, if an individual provides insufficient documentation in
response to the employer's initial request, the employer should explain why the documentation is
insufficient and allow the individual an opportunity to provide the missing information in a timely manner.
 Documentation is insufficient if it does not specify the existence of an ADA disability and explain the need
for reasonable accommodation.(33)

Any medical examination conducted by the employer's health professional must be job-related and
consistent with business necessity. This means that the examination must be limited to determining the
existence of an ADA disability and the functional limitations that require reasonable accommodation.(34)If
an employer requires an employee to go to a health professional of the employer's choice, the employer
must pay all costs associated with the visit(s).

8. Are there situations in which an employer cannot ask for documentation in response to a request for
reasonable accommodation?

Yes. An employer cannot ask for documentation when: (1) both the disability and the need for reasonable
accommodation are obvious, or (2) the individual has already provided the employer with sufficient
information to substantiate that s/he has an ADA disability and needs the reasonable accommodation
requested.

Example A: An employee brings a note from her treating physician explaining that she has diabetes and
that, as a result, she must test her blood sugar several times a day to ensure that her insulin level is safe
in order to avoid a hyperglycemic reaction. The note explains that a hyperglycemic reaction can include
extreme thirst, heavy breathing, drowsiness, and flushed skin, and eventually would result in
unconsciousness. Depending on the results of the blood test, the employee might have to take insulin.
The note requests that the employee be allowed three or four 10-minute breaks each day to test her
blood, and if necessary, to take insulin. The doctor's note constitutes sufficient documentation that the
person has an ADA disability because it describes a substantially limiting impairment and the reasonable
accommodation needed as a result. The employer cannot ask for additional documentation.

Example B: One year ago, an employer learned that an employee had bipolar disorder after he requested
a reasonable accommodation. The documentation provided at that time from the employee's psychiatrist
indicated that this was a permanent condition which would always involve periods in which the disability
would remit and then intensify. The psychiatrist's letter explained that during periods when the condition
flared up, the person's manic moods or depressive episodes could be severe enough to create serious
problems for the individual in caring for himself or working, and that medication controlled the frequency
and severity of these episodes.

Now, one year later, the employee again requests a reasonable accommodation related to his bipolar
disorder. Under these facts, the employer may ask for reasonable documentation on the need for the
accommodation (if the need is not obvious), but it cannot ask for documentation that the person has an
ADA disability. The medical information provided one year ago established the existence of a long-term
impairment that substantially limits a major life activity.

Example C: An employee gives her employer a letter from her doctor, stating that the employee has
asthma and needs the employer to provide her with an air filter. This letter contains insufficient
information as to whether the asthma is an ADA disability because it does not provide any information as
to its severity (i.e., whether it substantially limits a major life activity). Furthermore, the letter does not
identify precisely what problem exists in the workplace that requires an air filter or any other reasonable
accommodation. Therefore, the employer can request additional documentation.

9. Is an employer required to provide the reasonable accommodation that the individual wants?

The employer may choose among reasonable accommodations as long as the chosen accommodation is
effective.(35) Thus, as part of the interactive process, the employer may offer alternative suggestions for
reasonable accommodations and discuss their effectiveness in removing the workplace barrier that is
impeding the individual with a disability.

If there are two possible reasonable accommodations, and one costs more or is more burdensome than
the other, the employer may choose the less expensive or burdensome accommodation as long as it is
effective (i.e., it would remove a workplace barrier, thereby providing the individual with an equal
opportunity to apply for a position, to perform the essential functions of a position, or to gain equal
access to a benefit or privilege of employment). Similarly, when there are two or more effective
accommodations, the employer may choose the one that is easier to provide. In either situation, the
employer does not have to show that it is an undue hardship to provide the more expensive or more
 difficult accommodation. If more than one accommodation is effective, "the preference of the individual
with a disability should be given primary consideration. However, the employer providing the
accommodation has the ultimate discretion to choose between effective accommodations."(36)

Example A: An employee with a severe learning disability has great difficulty reading. His supervisor
sends him many detailed memoranda which he often has trouble understanding. However, he has no
difficulty understanding oral communication. The employee requests that the employer install a computer
with speech output and that his supervisor send all memoranda through electronic mail which the
computer can then read to him. The supervisor asks whether a tape recorded message would accomplish
the same objective and the employee agrees that it would. Since both accommodations are effective, the
employer may choose to provide the supervisor and employee with a tape recorder so that the supervisor
can record her memoranda and the employee can listen to them.

Example B: An attorney with a severe vision disability requests that her employer provide someone to
read printed materials that she needs to review daily. The attorney explains that a reader enables her to
review substantial amounts of written materials in an efficient manner. Believing that this reasonable
accommodation would be too costly, the employer instead provides the attorney with a device that allows
her to magnify print so that she can read it herself. The attorney can read print using this device, but
with such great difficulty it significantly slows down her ability to review written materials. The
magnifying device is ineffective as a reasonable accommodation because it does not provide the attorney
with an equal opportunity to attain the same level of performance as her colleagues. Without an equal
opportunity to attain the same level of performance, this attorney is denied an equal opportunity to
compete for promotions. In this instance, failure to provide the reader, absent undue hardship, would
violate the ADA.

10. How quickly must an employer respond to a request for reasonable accommodation?

An employer should respond expeditiously to a request for reasonable accommodation. If the employer
and the individual with a disability need to engage in an interactive process, this too should proceed as
quickly as possible.(37) Similarly, the employer should act promptly to provide the reasonable
accommodation. Unnecessary delays can result in a violation of the ADA.(38)

Example A: An employer provides parking for all employees. An employee who uses a wheelchair
requests from his supervisor an accessible parking space, explaining that the spaces are so narrow that
there is insufficient room for his van to extend the ramp that allows him to get in and out. The supervisor
does not act on the request and does not forward it to someone with authority to respond. The employee
makes a second request to the supervisor. Yet, two months after the initial request, nothing has been
done. Although the supervisor never definitively denies the request, the lack of action under these
circumstances amounts to a denial, and thus violates the ADA.

Example B: An employee who is blind requests adaptive equipment for her computer as a reasonable
accommodation. The employer must order this equipment and is informed that it will take three months
to receive delivery. No other company sells the adaptive equipment the employee needs. The employer
notifies the employee of the results of its investigation and that it has ordered the equipment. Although it
will take three months to receive the equipment, the employer has moved as quickly as it can to obtain it
and thus there is no ADA violation resulting from the delay. The employer and employee should
determine what can be done so that the employee can perform his/her job as effectively as possible
while waiting for the equipment.

11. May an employer require an individual with a disability to accept a reasonable accommodation that s/he
does not want?

No. An employer may not require a qualified individual with a disability to accept an accommodation. If,
however, an employee needs a reasonable accommodation to perform an essential function or to
eliminate a direct threat, and refuses to accept an effective accommodation, s/he may not be qualified to
remain in the job.(39)

REASONABLE ACCOMMODATION AND JOB APPLICANTS

12. May an employer ask whether a reasonable accommodation is needed when an applicant has not asked
for one?
 An employer may tell applicants what the hiring process involves (e.g., an interview, timed written test,
or job demonstration), and may ask applicants whether they will need a reasonable accommodation for
this process.

During the hiring process and before a conditional offer is made, an employer generally may not ask an
applicant whether s/he needs a reasonable accommodation for the job, except when the employer knows
that an applicant has a disability -- either because it is obvious or the applicant has voluntarily disclosed
the information -- and could reasonably believe that the applicant will need a reasonable accommodation
to perform specific job functions. If the applicant replies that s/he needs a reasonable accommodation,
the employer may inquire as to what type. (40)

After a conditional offer of employment is extended, an employer may inquire whether applicants will
need reasonable accommodations related to anything connected with the job (i.e., job performance or
access to benefits/privileges of the job) as long as all entering employees in the same job category are
asked this question. Alternatively, an employer may ask a specific applicant if s/he needs a reasonable
accommodation if the employer knows that this applicant has a disability -- either because it is obvious
or the applicant has voluntarily disclosed the information -- and could reasonably believe that the
applicant will need a reasonable accommodation. If the applicant replies that s/he needs a reasonable
accommodation, the employer may inquire as to what type.(41)

13. Does an employer have to provide a reasonable accommodation to an applicant with a disability even if it
believes that it will be unable to provide this individual with a reasonable accommodation on the job?

Yes. An employer must provide a reasonable accommodation to a qualified applicant with a disability that
will enable the individual to have an equal opportunity to participate in the application process and to be
considered for a job (unless it can show undue hardship). Thus, individuals with disabilities who meet
initial requirements to be considered for a job should not be excluded from the application process
because the employer speculates, based on a request for reasonable accommodation for the application
process, that it will be unable to provide the individual with reasonable accommodation to perform the
job. In many instances, employers will be unable to determine whether an individual needs reasonable
accommodation to perform a job based solely on a request for accommodation during the application
process. And even if an individual will need reasonable accommodation to perform the job, it may not be
the same type or degree of accommodation that is needed for the application process. Thus, an employer
should assess the need for accommodations for the application process separately from those that may
be needed to perform the job. (42)

Example A: An employer is impressed with an applicant's resume and contacts the individual to come in
for an interview. The applicant, who is deaf, requests a sign language interpreter for the interview. The
employer cancels the interview and refuses to consider further this applicant because it believes it would
have to hire a full-time interpreter. The employer has violated the ADA. The employer should have
proceeded with the interview, using a sign language interpreter (absent undue hardship), and at the
interview inquired to what extent the individual would need a sign language interpreter to perform any
essential functions requiring communication with other people.

Example B: An individual who has paraplegia applies for a secretarial position. Because the office has two
steps at the entrance, the employer arranges for the applicant to take a typing test, a requirement of the
application process, at a different location. The applicant fails the test. The employer does not have to
provide any further reasonable accommodations for this individual because she is no longer qualified to
continue with the application process.

REASONABLE ACCOMMODATION RELATED TO THE BENEFITS AND

PRIVILEGES OF EMPLOYMENT (43)
The ADA requires employers to provide reasonable accommodations so that employees with disabilities
can enjoy the "benefits and privileges of employment" equal to those enjoyed by similarly-situated
employees without disabilities. Benefits and privileges of employment include, but are not limited to,
employer-sponsored: (1) training, (2) services (e.g., employee assistance programs (EAP's), credit
unions, cafeterias, lounges, gymnasiums, auditoriums, transportation), and (3) parties or other social
functions (e.g., parties to celebrate retirements and birthdays, and company outings).(44)If an employee
with a disability needs a reasonable accommodation in order to gain access to, and have an equal
 opportunity to participate in, these benefits and privileges, then the employer must provide the
accommodation unless it can show undue hardship.

14. Does an employer have to provide reasonable accommodation to enable an employee with a disability to
have equal access to information communicated in the workplace to non-disabled employees?

Yes. Employers provide information to employees through different means, including computers, bulletin
boards, mailboxes, posters, and public address systems. Employers must ensure that employees with
disabilities have access to information that is provided to other similarly-situated employees without
disabilities, regardless of whether they need it to perform their jobs.

Example A: An employee who is blind has adaptive equipment for his computer that integrates him into
the network with other employees, thus allowing communication via electronic mail and access to the
computer bulletin board. When the employer installs upgraded computer equipment, it must provide new
adaptive equipment in order for the employee to be integrated into the new networks, absent undue
hardship. Alternative methods of communication (e.g., sending written or telephone messages to the
employee instead of electronic mail) are likely to be ineffective substitutes since electronic mail is used
by every employee and there is no effective way to ensure that each one will always use alternative
measures to ensure that the blind employee receives the same information that is being transmitted via
computer.

Example B: An employer authorizes the Human Resources Director to use a public address system to
remind employees about special meetings and to make certain announcements. In order to make this
information accessible to a deaf employee, the Human Resources Director arranges to send in advance
an electronic mail message to the deaf employee conveying the information that will be broadcast. The
Human Resources Director is the only person who uses the public address system; therefore, the
employer can ensure that all public address messages are sent, via electronic mail, to the deaf employee.
Thus, the employer is providing this employee with equal access to office communications.

15. Must an employer provide reasonable accommodation so that an employee may attend training
programs?

Yes. Employers must provide reasonable accommodation (e.g., sign language interpreters; written
materials produced in alternative formats, such as braille, large print, or on audio- cassette) that will
provide employees with disabilities with an equal opportunity to participate in employer-sponsored
training, absent undue hardship. This obligation extends to in-house training, as well as to training
provided by an outside entity. Similarly, the employer has an obligation to provide reasonable
accommodation whether the training occurs on the employer's premises or elsewhere.

Example A: XYZ Corp. has signed a contract with Super Trainers, Inc., to provide mediation training at its
facility to all of XYZ's Human Resources staff. One staff member is blind and requests that materials be
provided in braille. Super Trainers refuses to provide the materials in braille. XYZ maintains that it is the
responsibility of Super Trainers and sees no reason why it should have to arrange and pay for the braille
copy.

Both XYZ (as an employer covered under Title I of the ADA) and Super Trainers (as a public
accommodation covered under Title III of the ADA)(45) have obligations to provide materials in
alternative formats. This fact, however, does not excuse either one from their respective obligations. If
Super Trainers refuses to provide the braille version, despite its Title III obligations, XYZ still retains its
obligation to provide it as a reasonable accommodation, absent undue hardship.

Employers arranging with an outside entity to provide training may wish to avoid such problems by
specifying in the contract who has the responsibility to provide appropriate reasonable accommodations.
Similarly, employers should ensure that any offsite training will be held in an accessible facility if they
have an employee who, because of a disability, requires such an accommodation.

Example B: XYZ Corp. arranges for one of its employees to provide CPR training. This three-hour
program is optional. A deaf employee wishes to take the training and requests a sign language
interpreter. XYZ must provide the interpreter because the CPR training is a benefit that XYZ offers all
employees, even though it is optional.
 TYPES OF REASONABLE ACCOMMODATIONS RELATED TO JOB
PERFORMANCE(46)
Below are discussed certain types of reasonable accommodations related to job performance.

Job Restructuring

Job restructuring includes modifications such as:

reallocating or redistributing marginal job functions that an employee is unable to perform because
of a disability; and

altering when and/or how a function, essential or marginal, is performed.(47)

An employer never has to reallocate essential functions as a reasonable accommodation, but can do so if
it wishes.

16. If, as a reasonable accommodation, an employer restructures an employee's job to eliminate some
marginal functions, may the employer require the employee to take on other marginal functions that s/he
can perform?

Yes. An employer may switch the marginal functions of two (or more) employees in order to restructure a
job as a reasonable accommodation.

Example: A cleaning crew works in an office building. One member of the crew wears a prosthetic leg
which enables him to walk very well, but climbing steps is painful and difficult. Although he can perform
his essential functions without problems, he cannot perform the marginal function of sweeping the steps
located throughout the building. The marginal functions of a second crew member include cleaning the
small kitchen in the employee's lounge, which is something the first crew member can perform. The
employer can switch the marginal functions performed by these two employees.

Leave

Permitting the use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation when
necessitated by an employee's disability.(48) An employer does not have to provide paid leave beyond
that which is provided to similarly-situated employees. Employers should allow an employee with a
disability to exhaust accrued paid leave first and then provide unpaid leave.(49) For example, if
employees get 10 days of paid leave, and an employee with a disability needs 15 days of leave, the
employer should allow the individual to use 10 days of paid leave and 5 days of unpaid leave.

An employee with a disability may need leave for a number of reasons related to the disability, including,
but not limited to:

obtaining medical treatment (e.g., surgery, psychotherapy, substance abuse treatment, or

dialysis); rehabilitation services; or physical or occupational therapy;
recuperating from an illness or an episodic manifestation of the disability;
obtaining repairs on a wheelchair, accessible van, or prosthetic device;
avoiding temporary adverse conditions in the work environment (for example, an air-conditioning
breakdown causing unusually warm temperatures that could seriously harm an employee with
multiple sclerosis);
training a service animal (e.g., a guide dog); or
receiving training in the use of braille or to learn sign language.
17. May an employer apply a "no-fault" leave policy, under which employees are automatically terminated
after they have been on leave for a certain period of time, to an employee with a disability who needs
leave beyond the set period?

No. If an employee with a disability needs additional unpaid leave as a reasonable accommodation, the
employer must modify its "no-fault" leave policy to provide the employee with the additional leave,
unless it can show that: (1) there is another effective accommodation that would enable the person to
 perform the essential functions of his/her position, or (2) granting additional leave would cause an undue
hardship. Modifying workplace policies, including leave policies, is a form of reasonable accommodation.
(50)

18. Does an employer have to hold open an employee's job as a reasonable accommodation?

Yes. An employee with a disability who is granted leave as a reasonable accommodation is entitled to
return to his/her same position unless the employer demonstrates that holding open the position would
impose an undue hardship.(51)

If an employer cannot hold a position open during the entire leave period without incurring undue
hardship, the employer must consider whether it has a vacant, equivalent position for which the
employee is qualified and to which the employee can be reassigned to continue his/her leave for a
specific period of time and then, at the conclusion of the leave, can be returned to this new position.(52)

Example: An employee needs eight months of leave for treatment and recuperation related to a disability.
The employer grants the request, but after four months the employer determines that it can no longer
hold open the position for the remaining four months without incurring undue hardship. The employer
must consider whether it has a vacant, equivalent position to which the employee can be reassigned for
the remaining four months of leave, at the end of which time the employee would return to work in that
new position. If an equivalent position is not available, the employer must look for a vacant position at a
lower level. Continued leave is not required as a reasonable accommodation if a vacant position at a
lower level is also unavailable.

19. Can an employer penalize an employee for work missed during leave taken as a reasonable
accommodation?

No. To do so would be retaliation for the employee's use of a reasonable accommodation to which s/he is
entitled under the law.(53) Moreover, such punishment would make the leave an ineffective
accommodation, thus making an employer liable for failing to provide a reasonable accommodation.(54)

Example A: A salesperson took five months of leave as a reasonable accommodation. The company
compares the sales records of all salespeople over a one-year period, and any employee whose sales fall
more than 25% below the median sales performance of all employees is automatically terminated. The
employer terminates the salesperson because she had fallen below the required performance standard.
The company did not consider that the reason for her lower sales performance was her five-month leave
of absence; nor did it assess her productivity during the period she did work (i.e., prorate her
productivity).

Penalizing the salesperson in this manner constitutes retaliation and a denial of reasonable
accommodation.

Example B: Company X is having a reduction-in-force. The company decides that any employee who has
missed more than four weeks in the past year will be terminated. An employee took five weeks of leave
for treatment of his disability. The company cannot count those five weeks in determining whether to
terminate this employee.(55)

20. When an employee requests leave as a reasonable accommodation, may an employer provide an
accommodation that requires him/her to remain on the job instead?

Yes, if the employer's reasonable accommodation would be effective and eliminate the need for leave.(56)
An employer need not provide an employee's preferred accommodation as long as the employer provides
an effective accommodation.(57) Accordingly, in lieu of providing leave, an employer may provide a
reasonable accommodation that requires an employee to remain on the job (e.g., reallocation of marginal
functions or temporary transfer) as long as it does not interfere with the employee's ability to address
his/her medical needs. The employer is obligated, however, to restore the employee's full duties or to
return the employee to his/her original position once s/he no longer needs the reasonable
accommodation.

Example A: An employee with emphysema requests ten weeks of leave for surgery and recuperation
related to his disability. In discussing this request with the employer, the employee states that he could
return to work after seven weeks if, during his first three weeks back, he could work part-time and
 eliminate two marginal functions that require lots of walking. If the employer provides these
accommodations, then it can require the employee to return to work after seven weeks.

Example B: An employee's disability is getting more severe and her doctor recommends surgery to
counteract some of the effects. After receiving the employee's request for leave for the surgery, the
employer proposes that it provide certain equipment which it believes will mitigate the effects of the
disability and delay the need for leave to get surgery. The employer's proposed accommodation is not
effective because it interferes with the employee's ability to get medical treatment.

21. How should an employer handle leave for an employee covered by both the ADA and the Family and
Medical Leave Act (FMLA)?(58)

An employer should determine an employee's rights under each statute separately, and then consider
whether the two statutes overlap regarding the appropriate actions to take.(59)

Under the ADA, an employee who needs leave related to his/her disability is entitled to such leave if
there is no other effective accommodation and the leave will not cause undue hardship. An employer
must allow the individual to use any accrued paid leave first, but, if that is insufficient to cover the entire
period, then the employer should grant unpaid leave. An employer must continue an employee's health
insurance benefits during his/her leave period only if it does so for other employees in a similar leave
status. As for the employee's position, the ADA requires that the employer hold it open while the
employee is on leave unless it can show that doing so causes undue hardship. When the employee is
ready to return to work, the employer must allow the individual to return to the same position (assuming
that there was no undue hardship in holding it open) if the employee is still qualified (i.e., the employee
can perform the essential functions of the position with or without reasonable accommodation).

If it is an undue hardship under the ADA to hold open an employee's position during a period of leave, or
an employee is no longer qualified to return to his/her original position, then the employer must reassign
the employee (absent undue hardship) to a vacant position for which s/he is qualified.

Under the FMLA, an eligible employee is entitled to a maximum of 12 weeks of leave per 12 month
period. The FMLA guarantees the right of the employee to return to the same position or to an equivalent
one.(60) An employer must allow the individual to use any accrued paid leave first, but if that is
insufficient to cover the entire period, then the employer should grant unpaid leave. The FMLA requires
an employer to continue the employee's health insurance coverage during the leave period, provided the
employee pays his/her share of the premiums.

Example A: An employee with an ADA disability needs 13 weeks of leave for treatment related to the
disability. The employee is eligible under the FMLA for 12 weeks of leave (the maximum available), so
this period of leave constitutes both FMLA leave and a reasonable accommodation. Under the FMLA, the
employer could deny the employee the thirteenth week of leave. But, because the employee is also
covered under the ADA, the employer cannot deny the request for the thirteenth week of leave unless it
can show undue hardship. The employer may consider the impact on its operations caused by the initial
12-week absence, along with other undue hardship factors.(61)

Example B: An employee with an ADA disability has taken 10 weeks of FMLA leave and is preparing to
return to work. The employer wants to put her in an equivalent position rather than her original one.
Although this is permissible under the FMLA, the ADA requires that the employer return the employee to
her original position. Unless the employer can show that this would cause an undue hardship, or that the
employee is no longer qualified for her original position (with or without reasonable accommodation), the
employer must reinstate the employee to her original position.

Example C: An employee with an ADA disability has taken 12 weeks of FMLA leave. He notifies his
employer that he is ready to return to work, but he no longer is able to perform the essential functions of
his position or an equivalent position. Under the FMLA, the employer could terminate his employment,(62)
but under the ADA the employer must consider whether the employee could perform the essential
functions with reasonable accommodation (e.g., additional leave, part-time schedule, job restructuring,
or use of specialized equipment). If not, the ADA requires the employer to reassign the employee if there
is a vacant position available for which he is qualified, with or without reasonable accommodation, and
there is no undue hardship.

Modified or Part-Time Schedule

22. Must an employer allow an employee with a disability to work a modified or part-time schedule as a
reasonable accommodation, absent undue hardship?

Yes.(63) A modified schedule may involve adjusting arrival or departure times, providing periodic breaks,
altering when certain functions are performed, allowing an employee to use accrued paid leave, or
providing additional unpaid leave. An employer must provide a modified or part-time schedule when
required as a reasonable accommodation, absent undue hardship, even if it does not provide such
schedules for other employees.(64)

Example A: An employee with HIV infection must take medication on a strict schedule. The medication
causes extreme nausea about one hour after ingestion, and generally lasts about 45 minutes. The
employee asks that he be allowed to take a daily 45-minute break when the nausea occurs. The
employer must grant this request absent undue hardship.

For certain positions, the time during which an essential function is performed may be critical. This could
affect whether an employer can grant a request to modify an employee's schedule.(65) Employers should
carefully assess whether modifying the hours could significantly disrupt their operations -- that is, cause
undue hardship -- or whether the essential functions may be performed at different times with little or no
impact on the operations or the ability of other employees to perform their jobs.

If modifying an employee's schedule poses an undue hardship, an employer must consider reassignment
to a vacant position that would enable the employee to work during the hours requested. (66)

Example B: A day care worker requests that she be allowed to change her hours from 7:00 a.m. - 3:00
p.m. to 10:00 a.m. - 6:00 p.m. because of her disability. The day care center is open from 7:00 a.m. -
7:00 p.m. and it will still have sufficient coverage at the beginning of the morning if it grants the change
in hours. In this situation, the employer must provide the reasonable accommodation.

Example C: An employee works for a morning newspaper, operating the printing presses which run
between 10 p.m. and 3 a.m. Due to her disability, she needs to work in the daytime. The essential
function of her position, operating the printing presses, requires that she work at night because the
newspaper cannot be printed during the daytime hours. Since the employer cannot modify her hours, it
must consider whether it can reassign her to a different position.

23. How should an employer handle requests for modified or part-time schedules for an employee covered by
both the ADA and the Family and Medical Leave Act (FMLA)?(67)

An employer should determine an employee's rights under each statute separately, and then consider
whether the two statutes overlap regarding the appropriate actions to take.

Under the ADA, an employee who needs a modified or part-time schedule because of his/her disability is
entitled to such a schedule if there is no other effective accommodation and it will not cause undue
hardship. If there is undue hardship, the employer must reassign the employee if there is a vacant
position for which s/he is qualified and which would allow the employer to grant the modified or part-time
schedule (absent undue hardship).(68)An employee receiving a part-time schedule as a reasonable
accommodation is entitled only to the benefits, including health insurance, that other part-time
employees receive. Thus, if non- disabled part-time workers are not provided with health insurance, then
the employer does not have to provide such coverage to an employee with a disability who is given a
part-time schedule as a reasonable accommodation.

Under the FMLA, an eligible employee is entitled to take leave intermittently or on a part-time basis,
when medically necessary, until s/he has used up the equivalent of 12 workweeks in a 12- month period.
When such leave is foreseeable based on planned medical treatment, an employer may require the
employee to temporarily transfer (for the duration of the leave) to an available alternative position, with
equivalent pay and benefits, for which the employee is qualified and which better suits his/her reduced
hours.(69) An employer always must maintain the employee's existing level of coverage under a group
health plan during the period of FMLA leave, provided the employee pays his/her share of the premium.
(70)

Example: An employee with an ADA disability requests that she be excused from work one day a week
for the next six months because of her disability. If this employee is eligible for a modified schedule
 under the FMLA, the employer must provide the requested leave under that statute if it is medically
necessary, even if the leave would be an undue hardship under the ADA.

Modified Workplace Policies

24. Is it a reasonable accommodation to modify a workplace policy?

Yes. It is a reasonable accommodation to modify a workplace policy when necessitated by an individual's

disability-related limitations,(71) absent undue hardship. But, reasonable accommodation only requires
that the employer modify the policy for an employee who requires such action because of a disability;
therefore, the employer may continue to apply the policy to all other employees.

Example: An employer has a policy prohibiting employees from eating or drinking at their workstations.
An employee with insulin-dependent diabetes explains to her employer that she may occasionally take
too much insulin and, in order to avoid going into insulin shock, she must immediately eat a candy bar or
drink fruit juice. The employee requests permission to keep such food at her workstation and to eat or
drink when her insulin level necessitates. The employer must modify its policy to grant this request,
absent undue hardship. Similarly, an employer might have to modify a policy to allow an employee with a
disability to bring in a small refrigerator, or to use the employer's refrigerator, to store medication that
must be taken during working hours.

Granting an employee time off from work or an adjusted work schedule as a reasonable accommodation
may involve modifying leave or attendance procedures or policies. For example, it would be a reasonable
accommodation to modify a policy requiring employees to schedule vacation time in advance if an
otherwise qualified individual with a disability needed to use accrued vacation time on an unscheduled
basis because of disability- related medical problems, barring undue hardship.(72)Furthermore, an
employer may be required to provide additional leave to an employee with a disability as a reasonable
accommodation in spite of a "no-fault" leave policy, unless the provision of such leave would impose an
undue hardship.(73)

In some instances, an employer's refusal to modify a workplace policy, such as a leave or attendance
policy, could constitute disparate treatment as well as a failure to provide a reasonable accommodation.
For example, an employer may have a policy requiring employees to notify supervisors before 9:00 a.m.
if they are unable to report to work. If an employer would excuse an employee from complying with this
policy because of emergency hospitalization due to a car accident, then the employer must do the same
thing when the emergency hospitalization is due to a disability.(74)

Reassignment (75)

The ADA specifically lists "reassignment to a vacant position" as a form of reasonable accommodation.
(76) This type of reasonable accommodation must be provided to an employee who, because of a
disability, can no longer perform the essential functions of his/her current position, with or without
reasonable accommodation, unless the employer can show that it would be an undue hardship.(77)

An employee must be "qualified" for the new position. An employee is "qualified" for a position if s/he:
(1) satisfies the requisite skill, experience, education, and other job-related requirements of the position,
and (2) can perform the essential functions of the new position, with or without reasonable
accommodation.(78) The employee does not need to be the best qualified individual for the position in
order to obtain it as a reassignment.

There is no obligation for the employer to assist the individual to become qualified. Thus, the employer
does not have to provide training so that the employee acquires necessary skills to take a job.(79) The
employer, however, would have to provide an employee with a disability who is being reassigned with any
training that is normally provided to anyone hired for or transferred to the position.

Example A: An employer is considering reassigning an employee with a disability to a position which

requires the ability to speak Spanish in order to perform an essential function. The employee never
learned Spanish and wants the employer to send him to a course to learn Spanish. The employer is not
required to provide this training as part of the obligation to make a reassignment. Therefore, the
employee is not qualified for this position.
 Example B: An employer is considering reassigning an employee with a disability to a position in which
she will contract for goods and services. The employee is qualified for the position. The employer has its
own specialized rules regarding contracting that necessitate training all individuals hired for these
positions. In this situation, the employer must provide the employee with this specialized training.

Before considering reassignment as a reasonable accommodation, employers should first consider those
accommodations that would enable an employee to remain in his/her current position. Reassignment is
the reasonable accommodation of last resort and is required only after it has been determined that: (1)
there are no effective accommodations that will enable the employee to perform the essential functions
of his/her current position, or (2) all other reasonable accommodations would impose an undue hardship.
(80) However, if both the employer and the employee voluntarily agree that transfer is preferable to
remaining in the current position with some form of reasonable accommodation, then the employer may
transfer the employee.

"Vacant" means that the position is available when the employee asks for reasonable accommodation, or
that the employer knows that it will become available within a reasonable amount of time. A "reasonable
amount of time" should be determined on a case-by-case basis considering relevant facts, such as
whether the employer, based on experience, can anticipate that an appropriate position will become
vacant within a short period of time.(81) A position is considered vacant even if an employer has posted a
notice or announcement seeking applications for that position. The employer does not have to bump an
employee from a job in order to create a vacancy; nor does it have to create a new position.(82)

Example C: An employer is seeking a reassignment for an employee with a disability. There are no vacant
positions today, but the employer has just learned that another employee resigned and that that position
will become vacant in four weeks. The impending vacancy is equivalent to the position currently held by
the employee with a disability. If the employee is qualified for that position, the employer must offer it to
him.

Example D: An employer is seeking a reassignment for an employee with a disability. There are no
vacant positions today, but the employer has just learned that an employee in an equivalent position
plans to retire in six months. Although the employer knows that the employee with a disability is qualified
for this position, the employer does not have to offer this position to her because six months is beyond a
"reasonable amount of time." (If, six months from now, the employer decides to advertise the position, it
must allow the individual to apply for that position and give the application the consideration it
deserves.)

The employer must reassign the individual to a vacant position that is equivalent in terms of pay, status,
or other relevant factors (e.g., benefits, geographical location) if the employee is qualified for the
position. If there is no vacant equivalent position, the employer must reassign the employee to a vacant
lower level position for which the individual is qualified. Assuming there is more than one vacancy for
which the employee is qualified, the employer must place the individual in the position that comes closest
to the employee's current position in terms of pay, status, etc.(83)If it is unclear which position comes
closest, the employer should consult with the employee about his/her preference before determining the
position to which the employee will be reassigned. Reassignment does not include giving an employee a
promotion. Thus, an employee must compete for any vacant position that would constitute a promotion.

25. Is a probationary employee entitled to reassignment?

Employers cannot deny a reassignment to an employee solely because s/he is designated as

"probationary." An employee with a disability is eligible for reassignment to a new position, regardless of
whether s/he is considered "probationary," as long as the employee adequately performed the essential
functions of the position, with or without reasonable accommodation, before the need for a reassignment
arose.

The longer the period of time in which an employee has adequately performed the essential functions,
with or without reasonable accommodation, the more likely it is that reassignment is appropriate if the
employee becomes unable to continue performing the essential functions of the current position due to a
disability. If, however, the probationary employee has never adequately performed the essential
functions, with or without reasonable accommodation, then s/he is not entitled to reassignment because
s/he was never "qualified" for the original position. In this situation, the employee is similar to an
applicant who applies for a job for which s/he is not qualified, and then requests reassignment.
Applicants are not entitled to reassignment.
 Example A: An employer designates all new employees as "probationary" for one year. An employee has
been working successfully for nine months when she becomes disabled in a car accident. The employee,
due to her disability, is unable to continue performing the essential functions of her current position, with
or without reasonable accommodation, and seeks a reassignment. She is entitled to a reassignment if
there is a vacant position for which she is qualified and it would not pose an undue hardship.

Example B: A probationary employee has been working two weeks, but has been unable to perform the
essential functions of the job because of his disability. There are no reasonable accommodations that
would permit the individual to perform the essential functions of the position, so the individual requests a
reassignment. The employer does not have to provide a reassignment (even if there is a vacant position)
because, as it turns out, the individual was never qualified -- i.e., the individual was never able to
perform the essential functions of the position, with or without reasonable accommodation, for which he
was hired.

26. Must an employer offer reassignment as a reasonable accommodation if it does not allow any of its
employees to transfer from one position to another?

Yes. The ADA requires employers to provide reasonable accommodations to individuals with disabilities,
including reassignment, even though they are not available to others. Therefore, an employer who does
not normally transfer employees would still have to reassign an employee with a disability, unless it could
show that the reassignment caused an undue hardship. And, if an employer has a policy prohibiting
transfers, it would have to modify that policy in order to reassign an employee with a disability, unless it
could show undue hardship.(84)

27. Is an employer's obligation to offer reassignment to a vacant position limited to those vacancies within an
employee's office, branch, agency, department, facility, personnel system (if the employer has more than
a single personnel system), or geographical area?

No. This is true even if the employer has a policy prohibiting transfers from one office, branch, agency,
department, facility, personnel system, or geographical area to another. The ADA contains no language
limiting the obligation to reassign only to positions within an office, branch, agency, etc.(85) Rather, the
extent to which an employer must search for a vacant position will be an issue of undue hardship.(86)If
an employee is being reassigned to a different geographical area, the employee must pay for any
relocation expenses unless the employer routinely pays such expenses when granting voluntary transfers
to other employees.

28. Does an employer have to notify an employee with a disability about vacant positions, or is it the
employee's responsibility to learn what jobs are vacant?

The employer is in the best position to know which jobs are vacant or will become vacant within a
reasonable period of time.(87) In order to narrow the search for potential vacancies, the employer, as
part of the interactive process, should ask the employee about his/her qualifications and interests. Based
on this information, the employer is obligated to inform an employee about vacant positions for which
s/he may be eligible as a reassignment. However, an employee should assist the employer in identifying
appropriate vacancies to the extent that the employee has access to information about them. If the
employer does not know whether the employee is qualified for a specific position, the employer can
discuss with the employee his/her qualifications.(88)

An employer should proceed as expeditiously as possible in determining whether there are appropriate
vacancies. The length of this process will vary depending on how quickly an employer can search for and
identify whether an appropriate vacant position exists. For a very small employer, this process may take
one day; for other employers this process may take several weeks.(89)When an employer has completed
its search, identified whether there are any vacancies (including any positions that will become vacant in
a reasonable amount of time), notified the employee of the results, and either offered an appropriate
vacancy to the employee or informed him/her that no appropriate vacancies are available, the employer
will have fulfilled its obligation.

29. Does reassignment mean that the employee is permitted to compete for a vacant position?

No. Reassignment means that the employee gets the vacant position if s/he is qualified for it. Otherwise,
reassignment would be of little value and would not be implemented as Congress intended.(90)
30. If an employee is reassigned to a lower level position, must an employer maintain his/her salary from the
higher level position?

No, unless the employer transfers employees without disabilities to lower level positions and maintains
their original salaries.(91)

31. Must an employer provide a reassignment if it would violate a seniority system?

Generally, it will be "unreasonable" to reassign an employee with a disability if doing so would violate the
rules of a seniority system.(92) This is true both for collectively bargained seniority systems and those
unilaterally imposed by management. Seniority systems governing job placement give employees
expectations of consistent, uniform treatment expectations that would be undermined if employers had
to make the type of individualized, case-by-case assessment required by the reasonable accommodation
process.(93)

However, if there are "special circumstances" that "undermine the employees' expectations of consistent,
uniform treatment," it may be a "reasonable accommodation," absent undue hardship, to reassign an
employee despite the existence of a seniority system. For example, "special circumstances" may exist
where an employer retains the right to alter the seniority system unilaterally, and has exercised that right
fairly frequently, thereby lowering employee expectations in the seniority system.(94)In this
circumstance, one more exception (i.e., providing the reassignment to an employee with a disability)
may not make a difference.(95)Alternatively, a seniority system may contain exceptions, such that one
more exception is unlikely to matter.(96) Another possibility is that a seniority system might contain
procedures for making exceptions, thus suggesting to employees that seniority does not automatically
guarantee access to a specific job.

OTHER REASONABLE ACCOMMODATION ISSUES (97)

32. If an employer has provided one reasonable accommodation, does it have to provide additional
reasonable accommodations requested by an individual with a disability?

The duty to provide reasonable accommodation is an ongoing one.(98) Certain individuals require only
one reasonable accommodation, while others may need more than one. Still others may need one
reasonable accommodation for a period of time, and then at a later date, require another type of
reasonable accommodation. If an individual requests multiple reasonable accommodations, s/he is
entitled only to those accommodations that are necessitated by a disability and that will provide an equal
employment opportunity.

An employer must consider each request for reasonable accommodation and determine: (1) whether the
accommodation is needed, (2) if needed, whether the accommodation would be effective, and (3) if
effective, whether providing the reasonable accommodation would impose an undue hardship. If a
reasonable accommodation turns out to be ineffective and the employee with a disability remains unable
to perform an essential function, the employer must consider whether there would be an alternative
reasonable accommodation that would not pose an undue hardship. If there is no alternative
accommodation, then the employer must attempt to reassign the employee to a vacant position for which
s/he is qualified, unless to do so would cause an undue hardship.

33. Does an employer have to change a person's supervisor as a form of reasonable accommodation?

No. An employer does not have to provide an employee with a new supervisor as a reasonable
accommodation. Nothing in the ADA, however, prohibits an employer from doing so. Furthermore,
although an employer is not required to change supervisors, the ADA may require that supervisory
methods be altered as a form of reasonable accommodation.(99)Also, an employee with a disability is
protected from disability-based discrimination by a supervisor, including disability-based harassment.

Example: A supervisor frequently schedules team meetings on a day's notice often notifying staff in the
afternoon that a meeting will be held on the following morning. An employee with a disability has missed
several meetings because they have conflicted with previously-scheduled physical therapy sessions. The
employee asks that the supervisor give her two to three days' notice of team meetings so that, if
 necessary, she can reschedule the physical therapy sessions. Assuming no undue hardship would result,
the supervisor must make this reasonable accommodation.

34. Does an employer have to allow an employee with a disability to work at home as a reasonable
accommodation?

An employer must modify its policy concerning where work is performed if such a change is needed as a
reasonable accommodation, but only if this accommodation would be effective and would not cause an
undue hardship.(100)Whether this accommodation is effective will depend on whether the essential
functions of the position can be performed at home. There are certain jobs in which the essential
functions can only be performed at the work site -- e.g., food server, cashier in a store. For such jobs,
allowing an employee to work at home is not effective because it does not enable an employee to
perform his/her essential functions. Certain considerations may be critical in determining whether a job
can be effectively performed at home, including (but not limited to) the employer's ability to adequately
supervise the employee and the employee's need to work with certain equipment or tools that cannot be
replicated at home. In contrast, employees may be able to perform the essential functions of certain
types of jobs at home (e.g., telemarketer, proofreader).(101) For these types of jobs, an employer may
deny a request to work at home if it can show that another accommodation would be effective or if
working at home will cause undue hardship.

35. Must an employer withhold discipline or termination of an employee who, because of a disability, violated
a conduct rule that is job-related for the position in question and consistent with business necessity?

No. An employer never has to excuse a violation of a uniformly applied conduct rule that is job-related
and consistent with business necessity. This means, for example, that an employer never has to tolerate
or excuse violence, threats of violence, stealing, or destruction of property. An employer may discipline
an employee with a disability for engaging in such misconduct if it would impose the same discipline on
an employee without a disability.

36. Must an employer provide a reasonable accommodation for an employee with a disability who violated a
conduct rule that is job- related for the position in question and consistent with business necessity?

An employer must make reasonable accommodation to enable an otherwise qualified employee with a
disability to meet such a conduct standard in the future, barring undue hardship, except where the
punishment for the violation is termination.(102)Since reasonable accommodation is always prospective,
an employer is not required to excuse past misconduct even if it is the result of the individual's disability.
(103) Possible reasonable accommodations could include adjustments to starting times, specified breaks,

and leave if these accommodations will enable an employee to comply with conduct rules.(104)

Example: An employee with major depression is often late for work because of medication side-effects
that make him extremely groggy in the morning. His scheduled hours are 9:00 a.m. to 5:30 p.m., but he
arrives at 9:00, 9:30, 10:00, or even 10:30 on any given day. His job responsibilities involve telephone
contact with the company's traveling sales representatives, who depend on him to answer urgent
marketing questions and expedite special orders. The employer disciplines him for tardiness, stating that
continued failure to arrive promptly during the next month will result in termination of his employment.
The individual then explains that he was late because of a disability and needs to work on a later
schedule. In this situation, the employer may discipline the employee because he violated a conduct
standard addressing tardiness that is job-related for the position in question and consistent with business
necessity. The employer, however, must consider reasonable accommodation, barring undue hardship, to
enable this individual to meet this standard in the future. For example, if this individual can serve the
company's sales representatives by regularly working a schedule of 10:00 a.m. to 6:30 p.m., a
reasonable accommodation would be to modify his schedule so that he is not required to report for work
until 10:00 a.m.

37. Is it a reasonable accommodation to make sure that an employee takes medication as prescribed?

No. Medication monitoring is not a reasonable accommodation. Employers have no obligation to monitor
medication because doing so does not remove a workplace barrier. Similarly, an employer has no
responsibility to monitor an employee's medical treatment or ensure that s/he is receiving appropriate
treatment because such treatment does not involve modifying workplace barriers.(105)
 It may be a form of reasonable accommodation, however, to give an employee a break in order that s/he
may take medication, or to grant leave so that an employee may obtain treatment.

38. Is an employer relieved of its obligation to provide reasonable accommodation for an employee with a
disability who fails to take medication, to obtain medical treatment, or to use an assistive device (such as
a hearing aid)?

No. The ADA requires an employer to provide reasonable accommodation to remove workplace barriers,
regardless of what effect medication, other medical treatment, or assistive devices may have on an
employee's ability to perform the job.(106)

However, if an employee with a disability, with or without reasonable accommodation, cannot perform the
essential functions of the position or poses a direct threat in the absence of medication, treatment, or an
assistive device, then s/he is unqualified.

39. Must an employer provide a reasonable accommodation that is needed because of the side effects of
medication or treatment related to the disability, or because of symptoms or other medical conditions
resulting from the underlying disability?

Yes. The side effects caused by the medication that an employee must take because of the disability are
limitations resulting from the disability. Reasonable accommodation extends to all limitations resulting
from a disability.

Example A: An employee with cancer undergoes chemotherapy twice a week, which causes her to be
quite ill afterwards. The employee requests a modified schedule -- leave for the two days a week of
chemotherapy. The treatment will last six weeks. Unless it can show undue hardship, the employer must
grant this request.

Similarly, any symptoms or related medical conditions resulting from the disability that cause limitations
may also require reasonable accommodation.(107)

Example B: An employee, as a result of insulin-dependent diabetes, has developed background

retinopathy (a vision impairment). The employee, who already has provided documentation showing his
diabetes is a disability, requests a device to enlarge the text on his computer screen. The employer can
request documentation that the retinopathy is related to the diabetes but the employee does not have to
show that the retinopathy is an independent disability under the ADA. Since the retinopathy is a
consequence of the diabetes (an ADA disability), the request must be granted unless undue hardship can
be shown.

40. Must an employer ask whether a reasonable accommodation is needed when an employee has not asked
for one?

Generally, no. As a general rule, the individual with a disability -- who has the most knowledge about the
need for reasonable accommodation -- must inform the employer that an accommodation is needed.(108)

However, an employer should initiate the reasonable accommodation interactive process(109) without
being asked if the employer: (1) knows that the employee has a disability, (2) knows, or has reason to
know, that the employee is experiencing workplace problems because of the disability, and (3) knows, or
has reason to know, that the disability prevents the employee from requesting a reasonable
accommodation. If the individual with a disability states that s/he does not need a reasonable
accommodation, the employer will have fulfilled its obligation.

Example: An employee with mental retardation delivers messages at a law firm. He frequently mixes up
messages for "R. Miller" and "T. Miller." The employer knows about the disability, suspects that the
performance problem is a result of the disability, and knows that this employee is unable to ask for a
reasonable accommodation because of his mental retardation. The employer asks the employee about
mixing up the two names and asks if it would be helpful to spell the first name of each person. When the
employee says that would be better, the employer, as a reasonable accommodation, instructs the
receptionist to write the full first name when messages are left for one of the Messrs. Miller.

41. May an employer ask whether a reasonable accommodation is needed when an employee with a disability
has not asked for one?
 An employer may ask an employee with a known disability whether s/he needs a reasonable
accommodation when it reasonably believes that the employee may need an accommodation. For
example, an employer could ask a deaf employee who is being sent on a business trip if s/he needs
reasonable accommodation. Or, if an employer is scheduling a luncheon at a restaurant and is uncertain
about what questions it should ask to ensure that the restaurant is accessible for an employee who uses
a wheelchair, the employer may first ask the employee. An employer also may ask an employee with a
disability who is having performance or conduct problems if s/he needs reasonable accommodation.(110)

42. May an employer tell other employees that an individual is receiving a reasonable accommodation when
employees ask questions about a coworker with a disability?

No. An employer may not disclose that an employee is receiving a reasonable accommodation because
this usually amounts to a disclosure that the individual has a disability. The ADA specifically prohibits the
disclosure of medical information except in certain limited situations, which do not include disclosure to
coworkers.(111)

An employer may certainly respond to a question from an employee about why a coworker is receiving
what is perceived as "different" or "special" treatment by emphasizing its policy of assisting any
employee who encounters difficulties in the workplace. The employer also may find it helpful to point out
that many of the workplace issues encountered by employees are personal, and that, in these
circumstances, it is the employer's policy to respect employee privacy. An employer may be able to make
this point effectively by reassuring the employee asking the question that his/her privacy would similarly
be respected if s/he found it necessary to ask the employer for some kind of workplace change for
personal reasons.

Since responding to specific coworker questions may be difficult, employers might find it helpful before
such questions are raised to provide all employees with information about various laws that require
employers to meet certain employee needs (e.g., the ADA and the Family and Medical Leave Act), while
also requiring them to protect the privacy of employees. In providing general ADA information to
employees, an employer may wish to highlight the obligation to provide reasonable accommodation,
including the interactive process and different types of reasonable accommodations, and the statute's
confidentiality protections. Such information could be delivered in orientation materials, employee
handbooks, notices accompanying paystubs, and posted flyers. Employers may wish to explore these and
other alternatives with unions because they too are bound by the ADA's confidentiality provisions. Union
meetings and bulletin boards may be further avenues for such educational efforts.

As long as there is no coercion by an employer, an employee with a disability may voluntarily choose to
disclose to coworkers his/her disability and/or the fact that s/he is receiving a reasonable
accommodation.

UNDUE HARDSHIP ISSUES (112)

An employer does not have to provide a reasonable accommodation that would cause an "undue
hardship" to the employer. Generalized conclusions will not suffice to support a claim of undue hardship.
Instead, undue hardship must be based on an individualized assessment of current circumstances that
show that a specific reasonable accommodation would cause significant difficulty or expense.(113) A
determination of undue hardship should be based on several factors, including:

the nature and cost of the accommodation needed;

the overall financial resources of the facility making the reasonable accommodation; the number of
persons employed at this facility; the effect on expenses and resources of the facility;
the overall financial resources, size, number of employees, and type and location of facilities of the
employer (if the facility involved in the reasonable accommodation is part of a larger entity);
the type of operation of the employer, including the structure and functions of the workforce, the
geographic separateness, and the administrative or fiscal relationship of the facility involved in
making the accommodation to the employer;

the impact of the accommodation on the operation of the facility.(114)

 The ADA's legislative history indicates that Congress wanted employers to consider all possible sources of
outside funding when assessing whether a particular accommodation would be too costly.(115) Undue
hardship is determined based on the net cost to the employer. Thus, an employer should determine
whether funding is available from an outside source, such as a state rehabilitation agency, to pay for all
or part of the accommodation.(116) In addition, the employer should determine whether it is eligible for
certain tax credits or deductions to offset the cost of the accommodation. Also, to the extent that a
portion of the cost of an accommodation causes undue hardship, the employer should ask the individual
with a disability if s/he will pay the difference.

If an employer determines that one particular reasonable accommodation will cause undue hardship, but
a second type of reasonable accommodation will be effective and will not cause an undue hardship, then
the employer must provide the second accommodation.

An employer cannot claim undue hardship based on employees' (or customers') fears or prejudices
toward the individual's disability.(117) Nor can undue hardship be based on the fact that provision of a
reasonable accommodation might have a negative impact on the morale of other employees. Employers,
however, may be able to show undue hardship where provision of a reasonable accommodation would be
unduly disruptive to other employees's ability to work.

Example A: An employee with breast cancer is undergoing chemotherapy. As a consequence of the

treatment, the employee is subject to fatigue and finds it difficult to keep up with her regular workload.
So that she may focus her reduced energy on performing her essential functions, the employer transfers
three of her marginal functions to another employee for the duration of the chemotherapy treatments.
The second employee is unhappy at being given extra assignments, but the employer determines that
the employee can absorb the new assignments with little effect on his ability to perform his own
assignments in a timely manner. Since the employer cannot show significant disruption to its operation,
there is no undue hardship.(118)

Example B: A convenience store clerk with multiple sclerosis requests that he be allowed to go from
working full-time to part- time as a reasonable accommodation because of his disability. The store
assigns two clerks per shift, and if the first clerk's hours are reduced, the second clerk's workload will
increase significantly beyond his ability to handle his responsibilities. The store determines that such an
arrangement will result in inadequate coverage to serve customers in a timely manner, keep the shelves
stocked, and maintain store security. Thus, the employer can show undue hardship based on the
significant disruption to its operations and, therefore, can refuse to reduce the employee's hours. The
employer, however, should explore whether any other reasonable accommodation will assist the store
clerk without causing undue hardship.

43. Must an employer modify the work hours of an employee with a disability if doing so would prevent other
employees from performing their jobs?

No. If the result of modifying one employee's work hours (or granting leave) is to prevent other
employees from doing their jobs, then the significant disruption to the operations of the employer
constitutes an undue hardship.

Example A: A crane operator, due to his disability, requests an adjustment in his work schedule so that
he starts work at 8:00 a.m. rather than 7:00 a.m., and finishes one hour later in the evening. The crane
operator works with three other employees who cannot perform their jobs without the crane operator. As
a result, if the employer grants this requested accommodation, it would have to require the other three
workers to adjust their hours, find other work for them to do from 7:00 to 8:00, or have the workers do
nothing. The ADA does not require the employer to take any of these actions because they all
significantly disrupt the operations of the business. Thus, the employer can deny the requested
accommodation, but should discuss with the employee if there are other possible accommodations that
would not result in undue hardship.

Example B: A computer programmer works with a group of people to develop new software. There are
certain tasks that the entire group must perform together, but each person also has individual
assignments. It is through habit, not necessity, that they have often worked together first thing in the
morning.

The programmer, due to her disability, requests an adjustment in her work schedule so that she works
from 10:00 a.m. - 7:00 p.m. rather than 9:00 a.m. - 6:00 p.m. In this situation, the employer could
 grant the adjustment in hours because it would not significantly disrupt the operations of the business.
The effect of the reasonable accommodation would be to alter when the group worked together and when
they performed their individual assignments.

44. Can an employer deny a request for leave when an employee cannot provide a fixed date of return?

Providing leave to an employee who is unable to provide a fixed date of return is a form of reasonable
accommodation. However, if an employer is able to show that the lack of a fixed return date causes an
undue hardship, then it can deny the leave. In certain circumstances, undue hardship will derive from the
disruption to the operations of the entity that occurs because the employer can neither plan for the
employee's return nor permanently fill the position. If an employee cannot provide a fixed date of return,
and an employer determines that it can grant such leave at that time without causing undue hardship,
the employer has the right to require, as part of the interactive process, that the employee provide
periodic updates on his/her condition and possible date of return. After receiving these updates,
employers may reevaluate whether continued leave constitutes an undue hardship.

In certain situations, an employee may be able to provide only an approximate date of return.(119)
Treatment and recuperation do not always permit exact timetables. Thus, an employer cannot claim
undue hardship solely because an employee can provide only an approximate date of return. In such
situations, or in situations in which a return date must be postponed because of unforeseen medical
developments, employees should stay in regular communication with their employers to inform them of
their progress and discuss, if necessary, the need for continued leave beyond what might have been
granted originally.(120)

Example A: An experienced chef at a top restaurant requests leave for treatment of her disability but
cannot provide a fixed date of return. The restaurant can show that this request constitutes undue
hardship because of the difficulty of replacing, even temporarily, a chef of this caliber. Moreover, it leaves
the employer unable to determine how long it must hold open the position or to plan for the chef's
absence. Therefore, the restaurant can deny the request for leave as a reasonable accommodation.

Example B: An employee requests eight weeks of leave for surgery for his disability. The employer grants
the request. During surgery, serious complications arise that require a lengthier period of recuperation
than originally anticipated, as well as additional surgery. The employee contacts the employer after three
weeks of leave to ask for an additional ten to fourteen weeks of leave (i.e., a total of 18 to 22 weeks of
leave). The employer must assess whether granting additional leave causes an undue hardship.

45. Does a cost-benefit analysis determine whether a reasonable accommodation will cause undue hardship?

No. A cost-benefit analysis assesses the cost of a reasonable accommodation in relation to the perceived
benefit to the employer and the employee. Neither the statute nor the legislative history supports a cost-
benefit analysis to determine whether a specific accommodation causes an undue hardship.(121) Whether
the cost of a reasonable accommodation imposes an undue hardship depends on the employer's
resources, not on the individual's salary, position, or status (e.g., full-time versus part-time, salary
versus hourly wage, permanent versus temporary).

46. Can an employer claim undue hardship solely because a reasonable accommodation would require it to
make changes to property owned by someone else?

No, an employer cannot claim undue hardship solely because a reasonable accommodation would require
it to make changes to property owned by someone else. In some situations, an employer will have the
right under a lease or other contractual relationship with the property owner to make the type of changes
that are needed. If this is the case, the employer should make the changes, assuming no other factors
exist that would make the changes too difficult or costly. If the contractual relationship between the
employer and property owner requires the owner's consent to the kinds of changes that are required, or
prohibits them from being made, then the employer must make good faith efforts either to obtain the
owner's permission or to negotiate an exception to the terms of the contract. If the owner refuses to
allow the employer to make the modifications, the employer may claim undue hardship. Even in this
situation, however, the employer must still provide another reasonable accommodation, if one exists,
that would not cause undue hardship.

Example A: X Corp., a travel agency, leases space in a building owned by Z Co. One of X Corp.'s
employees becomes disabled and needs to use a wheelchair. The employee requests as a reasonable
 accommodation that several room dividers be moved to make his work space easily accessible. X Corp.'s
lease specifically allows it to make these kinds of physical changes, and they are otherwise easy and
inexpensive to make. The fact that X Corp. does not own the property does not create an undue hardship
and therefore it must make the requested accommodation.

Example B: Same as Example A, except that X Corp.'s lease requires it to seek Z Co.'s permission before
making any physical changes that would involve reconfiguring office space. X Corp. requests that Z Co.
allow it to make the changes, but Z Co. denies the request. X Corp. can claim that making the physical
changes would constitute an undue hardship. However, it must provide any other type of reasonable
accommodation that would not involve making physical changes to the facility, such as finding a different
location within the office that would be accessible to the employee.

An employer should remember its obligation to make reasonable accommodation when it is negotiating
contracts with property owners.(122) Similarly, a property owner should carefully assess a request from
an employer to make physical changes that are needed as a reasonable accommodation because failure
to permit the modification might constitute "interference" with the rights of an employee with a disability.
(123) In addition, other ADA provisions may require the property owner to make the modifications.(124)

BURDENS OF PROOF
In US Airways, Inc. v. Barnett, 535 U.S., 122 S. Ct. 1516 (2002), the Supreme Court laid out the burdens of
proof for an individual with a disability (plaintiff) and an employer (defendant) in an ADA lawsuit alleging failure
to provide reasonable accommodation. The "plaintiff/employee (to defeat a defendant/employer's motion for
summary judgment) need only show that an 'accommodation' seems reasonable on its face, i.e., ordinarily or
in the run of cases."(125) Once the plaintiff has shown that the accommodation s/he needs is "reasonable," the
burden shifts to the defendant/employer to provide case-specific evidence proving that reasonable
accommodation would cause an undue hardship in the particular circumstances.(126)

The Supreme Court's burden-shifting framework does not affect the interactive process triggered by an
individual's request for accommodation.(127) An employer should still engage in this informal dialogue to obtain
relevant information needed to make an informed decision.

INSTRUCTIONS FOR INVESTIGATORS

When assessing whether a Respondent has violated the ADA by denying a reasonable accommodation to a
Charging Party, investigators should consider the following:

Is the Charging Party "otherwise qualified" (i.e., is the Charging Party qualified for the job except that,
because of disability, s/he needs a reasonable accommodation to perform the position's essential
functions)?
Did the Charging Party, or a representative, request a reasonable accommodation (i.e., did the Charging
Party let the employer know that s/he needed an adjustment or change at work for a reason related to a
medical condition)? [see Questions 1-4]
Did the Respondent request documentation of the Charging Party's disability and/or functional
limitations? If yes, was the documentation provided? Did the Respondent have a legitimate reason
for requesting documentation? [see Questions 6-8]
What specific type of reasonable accommodation, if any, did the Charging Party request?
Was there a nexus between the reasonable accommodation requested and the functional
limitations resulting from the Charging Party's disability? [see Question 6]
Was the need for reasonable accommodation related to the use of medication, side effects from
treatment, or symptoms related to a disability? [see Questions 36-38]
For what purpose did the Charging Party request a reasonable accommodation:
for the application process? [see Questions 12-13]
in connection with aspects of job performance? [see Questions 16-24, 32-33]
 in order to enjoy the benefits and privileges of employment? [see Questions 14-15]
Should the Respondent have initiated the interactive process, or provided a reasonable accommodation,
even if the Charging Party did not ask for an accommodation? [see Questions 11, 39]
What did the Respondent do in response to the Charging Party's request for reasonable accommodation
(i.e., did the Respondent engage in an interactive process with the Charging Party and if so, describe
both the Respondent's and the Charging Party's actions/statements during this process)? [see Questions
5-11]
If the Charging Party asked the Respondent for a particular reasonable accommodation, and the
Respondent provided a different accommodation, why did the Respondent provide a different reasonable
accommodation than the one requested by the Charging Party? Why does the Respondent believe that
the reasonable accommodation it provided was effective in eliminating the workplace barrier at issue,
thus providing the Charging Party with an equal employment opportunity? Why does the Charging Party
believe that the reasonable accommodation provided by the Respondent was ineffective? [see Question
9]
What type of accommodation could the Respondent have provided that would have been "reasonable"
and effective in eliminating the workplace barrier at issue, thus providing the Charging Party with an
equal employment opportunity?
Does the charge involve allegations concerning reasonable accommodation and violations of any conduct
rules? [see Questions 34-35]
If the Charging Party alleges that the Respondent failed to provide a reassignment as a reasonable
accommodation [see generally Questions 25-30 and accompanying text]:
did the Respondent and the Charging Party first discuss other forms of reasonable accommodation
that would enable the Charging Party to remain in his/her current position before discussing
reassignment?
did the Respondent have any vacant positions? [see Question 27]
did the Respondent notify the Charging Party about possible vacant positions? [see Question 28]
was the Charging Party qualified for a vacant position?
if there was more than one vacant position, did the Respondent place the Charging Party in the one
that was most closely equivalent to the Charging Party's original position?
if the reassignment would conflict with a seniority system, are there "special circumstances" that
would make it "reasonable" to reassign the Charging Party? [see Question 31]
If the Respondent is claiming undue hardship [see generally Questions 42-46 and accompanying text]:
what evidence has the Respondent produced showing that providing a specific reasonable
accommodation would entail significant difficulty or expense?
if a modified schedule or leave is the reasonable accommodation, is undue hardship based on the
impact on the ability of other employees to do their jobs? [see Question 42]
if leave is the reasonable accommodation, is undue hardship based on the amount of leave
requested? [see Question 43]
if there are "special circumstances" that would make it "reasonable" to reassign the Charging Party,
despite the apparent conflict with a seniority system, would it nonetheless be an undue hardship to
make the reassignment? [see Question 31]
is undue hardship based on the fact that providing the reasonable accommodation requires
changes to property owned by an entity other than the Respondent? [see Question 46]
if the Respondent claims that a particular reasonable accommodation would result in undue
hardship, is there another reasonable accommodation that Respondent could have provided that
would not have resulted in undue hardship?
Based on the evidence obtained in answers to the questions above, is the Charging Party a qualified
individual with a disability (i.e., can the Charging Party perform the essential functions of the position
with or without reasonable accommodation)?
 APPENDIX
RESOURCES FOR LOCATING REASONABLE ACCOMMODATIONS
U.S. Equal Employment Opportunity Commission
1-800-669-3362 (Voice)
1-800-800-3302 (TT)

The EEOC's Publication Center has many free documents on the Title I employment provisions of the ADA,
including both the statute, 42 U.S.C. . 12101 et seq. (1994), and the regulations, 29 C.F.R. . 1630 (1997). In
addition, the EEOC has published a great deal of basic information about reasonable accommodation and undue
hardship. The two main sources of interpretive information are: (1) the Interpretive Guidance accompanying
the Title I regulations (also known as the "Appendix" to the regulations), 29 C.F.R. pt. 1630 app. .. 1630.2(o),
(p), 1630.9 (1997) , and (2) A Technical Assistance Manual on the Employment Provisions (Title I) of the
Americans with Disabilities Act III, 8 FEP Manual (BNA) 405:6981, 6998-7018 (1992). The Manual includes a
200-page Resource Directory, including federal and state agencies, and disability organizations that can provide
assistance in identifying and locating reasonable accommodations.

The EEOC also has discussed issues involving reasonable accommodation in the following guidances and
documents: (1) Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations
at 5, 6-8, 20, 21-22, 8 FEP Manual (BNA) 405:7191, 7192-94, 7201 (1995); (2) Enforcement Guidance:
Workers' Compensation and the ADA at 15-20, 8 FEP Manual (BNA) 405:7391, 7398-7401 (1996); (3)
Enforcement Guidance: The Americans with Disabilities Act and Psychiatric Disabilities at 19-28, 8 FEP Manual
(BNA) 405:7461, 7470-76 (1997); and (4) Fact Sheet on the Family and Medical Leave Act, the Americans with
Disabilities Act, and Title VII of the Civil Rights Act of 1964 at 6-9, 8 FEP Manual (BNA) 405:7371, 7374-76
(1996).

Finally, the EEOC has a poster that employers and labor unions may use to fulfill the ADA's posting
requirement.

All of the above-listed documents, with the exception of the ADA Technical Assistance Manual and Resource
Directory and the poster, are also available through the Internet at https://www.eeoc.gov.

U.S. Department of Labor

(To obtain information on the Family and Medical Leave Act)
To request written materials:
1-800-959-3652 (Voice)
1-800-326-2577 (TT)
To ask questions: (202) 219-8412 (Voice)

Internal Revenue Service

(For information on tax credits and deductions for providing certain reasonable accommodations)

(202) 622-6060 (Voice)

Job Accommodation Network (JAN)

1-800-232-9675 (Voice/TT)
http://janweb.icdi.wvu.edu/.

A service of the President's Committee on Employment of People with Disabilities. JAN can provide information,
free-of-charge, about many types of reasonable accommodations.

ADA Disability and Business Technical Assistance Centers (DBTACs) 1-800-949-4232 (Voice/TT)

The DBTACs consist of 10 federally funded regional centers that provide information, training, and technical
assistance on the ADA. Each center works with local business, disability, governmental, rehabilitation, and other
professional networks to provide current ADA information and assistance, and places special emphasis on
meeting the needs of small businesses. The DBTACs can make referrals to local sources of expertise in
reasonable accommodations.

Registry of Interpreters for the Deaf

(301) 608-0050 (Voice/TT)

The Registry offers information on locating and using interpreters and transliteration services.
RESNA Technical Assistance Project
(703) 524-6686 (Voice)
(703) 524-6639 (TT)
http://www.resna.org/hometa1.htm

RESNA, the Rehabilitation Engineering and Assistive Technology Society of North America, can refer individuals
to projects in all 50 states and the six territories offering technical assistance on technology-related services for
individuals with disabilities. Services may include:

information and referral centers to help determine what devices may assist a person with a disability
(including access to large data bases containing information on thousands of commercially available
assistive technology products),
centers where individuals can try out devices and equipment,
assistance in obtaining funding for and repairing devices, and
equipment exchange and recycling programs.

INDEX
The index applies to the print version. Since page numbering does not exist in HTML files, page numbers have
been removed.

Applicants and reasonable accommodation

Attendance and reasonable accommodation

Benefits and privileges of employment and reasonable accommodation

Access to information

Employer-sponsored services

Employer-sponsored social functions

Employer-sponsored training

Burdens of proof

Choosing between two or more reasonable accommodations

Conduct rules

Confidentiality and reasonable accommodation

Disparate treatment (versus reasonable accommodation)

Employees (part-time, full-time, probationary)

Essential functions and reasonable accommodation

Family and Medical Leave Act (FMLA); Relationship with the ADA

Firm choice and reasonable accommodation (See also "Last chance agreements")

Interactive process between employer and individual with a disability to determine reasonable accommodation

Landlord/Tenant and reasonable accommodation

Last chance agreements and reasonable accommodation (See also "Firm choice")

Marginal functions and reasonable accommodation

Medical treatment and reasonable accommodation

Employer monitoring of medical treatment

Failure to obtain medical treatment

Leave

Side effects of medical treatment and need for reasonable accommodation

Medication and reasonable accommodation

Employer monitoring of medication

Failure to use medication

Side effects of medication and need for reasonable accommodation

Personal use items and reasonable accommodation

Production standards and reasonable accommodation

Public accommodation and employer; who provides reasonable accommodation

"Reasonable accommodation" (definition of)

Reasonable accommodation (effectiveness of)

Reasonable accommodation (how many must employer provide)

Reasonable accommodation (types of)

Access to equipment and computer technology

Changing tests and training materials

Job restructuring

Leave

Alternatives to leave

Approximate versus fixed date of return

Family and Medical Leave Act (FMLA)

Holding open an employee's position

"No-fault" leave policies

Penalizing employees who take leave

Marginal functions (modifying how they are performed; elimination or substitution of)

Modified or part-time schedule

Family and Medical Leave Act (FMLA)

Modifying method of performing job function

Modifying workplace policies

Readers

Reassignment

Employee must be qualified for vacant position

Equivalent position

Interactive process between employer and employee

Relationship between reassignment and general transfer policies

Salary for new position

Seniority systems and reassignment

Vacant position

When must reassignment be offered

Who is entitled to reassignment

Sign language interpreters

Supervisory methods (changing)

Working at home

Reasonable accommodation (who is entitled to receive)

Rehabilitation Act of 1973; Relationship with the ADA

Relationship and association with a person with a disability

Requests for reasonable accommodation

Choosing between two or more reasonable accommodations

Documentation on the need for reasonable accommodation

How to request reasonable accommodation

Interactive process between employer and individual with a disability

Timing of employer's response to a request for reasonable accommodation

When should individual with disability request reasonable accommodation

Who may request reasonable accommodation

Right of individual with a disability to refuse reasonable accommodation

Role of health care providers in reasonable accommodation process

Seniority systems and reassignment

State or local antidiscrimination laws; Relationship with the ADA

Supervisors and reasonable accommodation

Undue hardship

Cost

Cost-benefit analysis

Definition of

Disruption to operations

Factors to assess

Landlord/Tenant

Leave

Work environment and reasonable accommodation

 Footnotes

1. 42 U.S.C. §§ 12101-12117, 12201-12213 (1994) (codified as amended).

The analysis in this guidance applies to federal sector complaints of non-affirmative action employment
discrimination arising under section 501 of the Rehabilitation Act of 1973. 29 U.S.C. § 791(g) (1994). It also
applies to complaints of non-affirmative action employment discrimination arising under section 503 and
employment discrimination under section 504 of the Rehabilitation Act. 29 U.S.C. §§ 793(d), 794(d) (1994).

The ADA's requirements regarding reasonable accommodation and undue hardship supercede any state or local
disability antidiscrimination laws to the extent that they offer less protection than the ADA. See 29 C.F.R. §
1630.1(c)(2) (1997).

2. In addition to employers, the ADA requires employment agencies, labor organizations, and joint labor-
management committees to provide reasonable accommodations. See 42 U.S.C. § 12112(a), (b)(5)(A) (1994).

3. 29 C.F.R. pt. 1630 app. § 1630.2(o) (1997).

4. 29 C.F.R. § 1630.2(o)(1)(i-iii) (1997) (emphasis added). The notices that employers and labor unions must
post informing applicants, employees, and members of labor organizations of their ADA rights must include a
description of the reasonable accommodation requirement. These notices, which must be in an accessible
format, are available from the EEOC. See the Appendix.

5. All examples used in this document assume that the applicant or employee has an ADA "disability."

Individuals with a relationship or association with a person with a disability are not entitled to receive
reasonable accommodations. See Den Hartog v. Wasatch Academy, 129 F.3d 1076, 1084, 7 AD Cas. (BNA) 764,
772 (10th Cir. 1997).

6. See 29 C.F.R. pt. 1630 app. § 1630.9 (1997); see also H.R. Rep. No. 101-485, pt. 3, at 39 (1990)
[hereinafter House Judiciary Report]; H.R. Rep. No. 101-485, pt. 2, at 65 (1990) [hereinafter House Education
and Labor Report]; S. Rep. No. 101-116, at 34 (1989)[hereinafter Senate Report].

For more information concerning requests for a reasonable accommodation, see Questions 1-4, infra. For a
discussion of the limited circumstance under which an employer would be required to ask an individual with a
disability whether s/he needed a reasonable accommodation, see Question 40, infra.

7. 42 U.S.C. § 12111(9) (1994); 29 C.F.R. § 1630.2(o)(2)(i-ii) (1997).

8. US Airways, Inc. v. Barnett, 535 U.S., 122 S. Ct. 1516, 1523 (2002).

9. Id.

Some courts have said that in determining whether an accommodation is "reasonable," one must look at the
costs of the accommodation in relation to its benefits. See, e.g., Monette v. Electronic Data Sys. Corp., 90 F.3d
1173, 1184 n.10, 5 AD Cas. (BNA) 1326, 1335 n.10 (6th Cir. 1996); Vande Zande v. Wisconsin Dept. of Admin.,
44 F.3d 538, 543, 3 AD Cas. (BNA) 1636, 1638-39 (7th Cir. 1995). This "cost/benefit" analysis has no
foundation in the statute, regulations, or legislative history of the ADA. See 42 U.S.C. § 12111(9), (10) (1994);
29 C.F.R. § 1630.2(o), (p) (1997); see also Senate Report, supra note 6, at 31-35; House Education and Labor
Report, supra note 6, at 57-58.

10. See US Airways, Inc. v. Barnett, 535 U.S., 122 S. Ct. 1516, 1522 (2002). The Court explained that "in
ordinary English the word 'reasonable' does not mean 'effective.' It is the word 'accommodation,' not the word
'reasonable,' that conveys the need for effectiveness." Id.

11. A TTY is a device that permits individuals with hearing and speech impairments to communicate by
telephone.

12. In US Airways, Inc. v. Barnett, the Supreme Court held that it was unreasonable, absent "special
circumstances," for an employer to provide a reassignment that conflicts with the terms of a seniority system.
535 U.S., 122 S. Ct. 1516, 1524-25 (2002). For a further discussion of this issue, see Question 31, infra.
13. "[W]ith or without reasonable accommodation" includes, if necessary, reassignment to a vacant position.
Thus, if an employee is no longer qualified because of a disability to continue in his/her present position, an
employer must reassign him/her as a reasonable accommodation. See the section on "Reassignment," infra pp.
37-38 and n.77.

14. 29 C.F.R. pt. 1630 app. § 1630.2(n) (1997).

15. 29 C.F.R. pt. 1630 app. § 1630.9 (1997).

16. See 42 U.S.C. § 12112 (b)(5)(A) (1994) (it is a form of discrimination to fail to provide a reasonable
accommodation "unless such covered entity can demonstrate that the accommodation would impose an undue
hardship . . ."); see also 42 U.S.C.

§ 12111(10) (1994) (defining "undue hardship" based on factors assessing cost and difficulty).

The legislative history discusses financial, administrative, and operational limitations on providing reasonable
accommodations only in the context of defining "undue hardship." Compare Senate Report, supra note 6, at
31-34 with 35-36; House Education and Labor Report, supra note 6, at 57-58 with 67-70.

17. See 42 U.S.C. § 12111(10) (1994); 29 C.F.R. § 1630.2(p) (1997); 29 C.F.R. pt. 1630 app. § 1630.2(p)
(1997).

18. See 29 C.F.R. pt. 1630 app. § 1630.15(d) (1997). See also Eckles v. Consolidated Rail Corp., 94 F.3d 1041,
1048-49, 5 AD Cas. (BNA) 1367, 1372-73 (7th Cir. 1996); Bryant v. Better Business Bureau of Maryland, 923 F.
Supp. 720, 740, 5 AD Cas. (BNA) 625, 638 (D. Md. 1996).

19. See, e.g., Schmidt v. Safeway Inc., 864 F. Supp. 991, 997, 3 AD Cas. (BNA) 1141, 1146-47 (D. Or. 1994)
("statute does not require the plaintiff to speak any magic words. . . The employee need not mention the ADA
or even the term 'accommodation.'"). See also Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 694, 8 AD
Cas. (BNA) 875, 882 (7th Cir. 1998) ("[a] request as straightforward as asking for continued employment is a
sufficient request for accommodation"); Bultemeyer v. Ft. Wayne Community Schs., 100 F.3d 1281, 1285, 6 AD
Cas. (BNA) 67, 71 (7th Cir. 1996) (an employee with a known psychiatric disability requested reasonable
accommodation by stating that he could not do a particular job and by submitting a note from his psychiatrist);
McGinnis v. Wonder Chemical Co., 5 AD Cas. (BNA) 219 (E.D. Pa. 1995) (employer on notice that
accommodation had been requested because: (1) employee told supervisor that his pain prevented him from
working and (2) employee had requested leave under the Family and Medical Leave Act).

Nothing in the ADA requires an individual to use legal terms or to anticipate all of the possible information an
employer may need in order to provide a reasonable accommodation. The ADA avoids a formulistic approach in
favor of an interactive discussion between the employer and the individual with a disability, after the individual
has requested a change due to a medical condition. Nevertheless, some courts have required that individuals
initially provide detailed information in order to trigger the employer's duty to investigate whether reasonable
accommodation is required. See, e.g., Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 165, 5 AD Cas. (BNA)
1653, 1660 (5th Cir. 1996); Miller v. Nat'l Cas. Co., 61 F.3d 627, 629-30, 4 AD Cas. (BNA) 1089, 1090-91 (8th
Cir. 1995).

20. See Questions 5 - 7, infra, for a further discussion on when an employer may request reasonable
documentation about a person's "disability" and the need for reasonable accommodation.

21. Cf. Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 5 AD Cas. (BNA) 304 (7th Cir. 1996); Schmidt v.
Safeway Inc., 864 F. Supp. 991, 997, 3 AD Cas. (BNA) 1141, 1146 (D. Or. 1994). But see Miller v. Nat'l
Casualty Co., 61 F.3d 627, 630, 4 AD Cas. (BNA) 1089, 1091 (8th Cir. 1995) (employer had no duty to
investigate reasonable accommodation despite the fact that the employee's sister notified the employer that
the employee "was mentally falling apart and the family was trying to get her into the hospital").

The employer should be receptive to any relevant information or requests it receives from a third party acting
on the individual's behalf because the reasonable accommodation process presumes open communication in
order to help the employer make an informed decision. See 29 C.F.R. §§ 1630.2(o), 1630.9 (1997); 29 C.F.R.
pt. 1630 app. §§ 1630.2(o), 1630.9 (1997).

22. Although individuals with disabilities are not required to keep records, they may find it useful to document
requests for reasonable accommodation in the event there is a dispute about whether or when they requested
accommodation. Employers, however, must keep all employment records, including records of requests for
reasonable accommodation, for one year from the making of the record or the personnel action involved,
whichever occurs later. If a charge is filed, records must be preserved until the charge is resolved. 29 C.F.R. §
1602.14 (1997).

23. Cf. Masterson v. Yellow Freight Sys., Inc., Nos. 98-6126, 98-6025, 1998 WL 856143 (10th Cir. Dec. 11,
1998) (fact that an employee with a disability does not need a reasonable accommodation all the time does not
relieve employer from providing an accommodation for the period when he does need one).

24. See 29 C.F.R. § 1630.2(o)(3) (1997); 29 C.F.R. pt. 1630 app. §§ 1630.2(o), 1630.9 (1997); see also
Haschmann v. Time Warner Entertainment Co., 151 F.3d 591, 601, 8 AD Cas. (BNA) 692, 700 (7th Cir. 1998);
Dalton v. Subaru-Isuzu, 141 F.3d 667, 677, 7 AD Cas. (BNA) 1872, 1880-81 (7th Cir. 1998). The appendix to
the regulations at § 1630.9 provides a detailed discussion of the reasonable accommodation process.

Engaging in an interactive process helps employers to discover and provide reasonable accommodation.
Moreover, in situations where an employer fails to provide a reasonable accommodation (and undue hardship
would not be a valid defense), evidence that the employer engaged in an interactive process can demonstrate a
"good faith" effort which can protect an employer from having to pay punitive and certain compensatory
damages. See 42 U.S.C. § 1981a(a)(3) (1994).

25. The burden-shifting framework outlined by the Supreme Court in US Airways, Inc. v. Barnett, 535 U.S., 122
S. Ct. 1516, 1523 (2002), does not affect the interactive process between an employer and an individual
seeking reasonable accommodation. See pages 61-62, infra, for a further discussion.

26. See 29 C.F.R. pt. 1630 app. § 1630.9 (1997). The Appendix to this Guidance provides a list of resources to
identify possible accommodations.

27. 29 C.F.R. pt. 1630 app. § 1630.9 (1997); see also EEOC Enforcement Guidance: Preemployment Disability-
Related Questions and Medical Examinations at 6, 8 FEP Manual (BNA) 405:7191, 7193 (1995) [hereinafter
Preemployment Questions and Medical Examinations]; EEOC Enforcement Guidance: The Americans with
Disabilities Act and Psychiatric Disabilities at 22-23, 8 FEP Manual (BNA) 405:7461, 7472-73 (1997)
[hereinafter ADA and Psychiatric Disabilities]. Although the latter Enforcement Guidance focuses on psychiatric
disabilities, the legal standard under which an employer may request documentation applies to disabilities
generally.

When an employee seeks leave as a reasonable accommodation, an employer's request for documentation
about disability and the need for leave may overlap with the certification requirements of the Family and
Medical Leave Act (FMLA), 29 C.F.R. §§ 825.305-.306, 825.310-.311 (1997).

28. Since a doctor cannot disclose information about a patient without his/her permission, an employer must
obtain a release from the individual that will permit his/her doctor to answer questions. The release should be
clear as to what information will be requested. Employers must maintain the confidentiality of all medical
information collected during this process, regardless of where the information comes from. See Question 42
and note 111, infra.

29. See Question 9, infra, for information on choosing between two or more effective accommodations.

30. This employee also might be covered under the Family and Medical Leave Act, and if so, the employer
would need to comply with the requirements of that statute.

31. See Templeton v. Neodata Servs., Inc., No. 98-1106, 1998 WL 852516 (10th Cir. Dec. 10, 1998); Beck v.
Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1134, 5 AD Cas. (BNA) 304, 307 (7th Cir. 1996); McAlpin v.
National Semiconductor Corp., 921 F. Supp. 1518, 1525, 5 AD Cas. (BNA) 1047, 1052 (N.D. Tex. 1996).

32. See Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 700, 8 AD Cas. (BNA) 875, 887 (7th Cir. 1998).

33. If an individual provides sufficient documentation to show the existence of an ADA disability and the need
for reasonable accommodation, continued efforts by the employer to require that the individual see the
employer's health professional could be considered retaliation.

34. Employers also may consider alternatives like having their health professional consult with the individual's
health professional, with the employee's consent.

35. See 29 C.F.R. pt. 1630 app. § 1630.9 (1997); see also Stewart v. Happy Herman's Cheshire Bridge, Inc.,
117 F.3d 1278, 1285-86, 6 AD Cas. (BNA) 1834, 1839 (11th Cir. 1997); Hankins v. The Gap, Inc., 84 F.3d 797,
800, 5 AD Cas. (BNA) 924, 926-27 (6th Cir. 1996); Gile v. United Airlines, Inc., 95 F.3d 492, 499, 5 AD Cas.
(BNA) 1466, 1471 (7th Cir. 1996).

36. 29 C.F.R. pt. 1630 app. §1630.9 (1997).

37. See Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 677, 7 AD Cas. (BNA) 1872, 1880 (7th Cir.
1998).

38. In determining whether there has been an unnecessary delay in responding to a request for reasonable
accommodation, relevant factors would include: (1) the reason(s) for the delay, (2) the length of the delay, (3)
how much the individual with a disability and the employer each contributed to the delay, (4) what the
employer was doing during the delay, and (5) whether the required accommodation was simple or complex to
provide.

39. See 29 C.F.R. pt. 1630 app. § 1630.9 (1997); see also Hankins v. The Gap, Inc., 84 F.3d 797, 801, 5 AD
Cas. (BNA) 924, 927 (6th Cir. 1996).

40. 42 U.S.C. § 12112(d)(2)(A) (1994); 29 C.F.R. § 1630.13(a) (1997). For a thorough discussion of these
requirements, see Preemployment Questions and Medical Examinations, supra note 27, at 6-8, 8 FEP Manual
(BNA) 405:7193-94.

41. 42 U.S.C. § 12112(d)(3) (1994); 29 C.F.R. § 1630.14(b) (1997); see also Preemployment Questions and
Medical Examinations, supra note 27, at 20, 8 FEP Manual (BNA) 405:7201.

42. See Question 12, supra, for the circumstances under which an employer may ask an applicant whether s/he
will need reasonable accommodation to perform specific job functions.

43. The discussions and examples in this section assume that there is only one effective accommodation and
that the reasonable accommodation will not cause undue hardship.

44. See 29 C.F.R. pt. 1630 app. § 1630.9 (1997).

45. 42 U.S.C. §§ 12181(7), 12182(1)(A), (2)(A)(iii) (1994).

46. The discussions and examples in this section assume that there is only one effective accommodation and
that the reasonable accommodation will not cause undue hardship.

The types of reasonable accommodations discussed in this section are not exhaustive. For example, employees
with disabilities may request reasonable accommodations to modify the work environment, such as changes to
the ventilation system or relocation of a work space.

See the Appendix for additional resources to identify other possible reasonable accommodations.

47. 42 U.S.C. § 12111(9)(B) (1994); 29 C.F.R. pt. 1630 app. §§ 1630.2(o), 1630.9 (1997); see Benson v.
Northwest Airlines, Inc., 62 F.3d 1108, 1112-13, 4 AD Cas. (BNA) 1234, 1236-37 (8th Cir. 1995).

48. 29 C.F.R. pt. 1630 app. § 1630.2(o) (1997). See Cehrs v. Northeast Ohio Alzheimer's, 155 F.3d 775, 782, 8
AD Cas. (BNA) 825, 830-31 (6th Cir. 1998).

An employee who needs leave, or a part-time or modified schedule, as a reasonable accommodation also may
be entitled to leave under the Family and Medical Leave Act. See Questions 21 and 23, infra.

49. See A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities
Act, at 3.10(4), 8 FEP Manual (BNA) 405:6981, 7011 (1992) [hereinafter TAM].

50. 42 U.S.C. § 12111(9)(B) (1994); 29 C.F.R. § 1630.2(o)(2)(ii) (1997). See US Airways, Inc. v. Barnett, 535
U.S., 122 S. Ct. 1516, 1521 (2002). See also Question 24, infra. While undue hardship cannot be based solely
on the existence of a no-fault leave policy, the employer may be able to show undue hardship based on an
individualized assessment showing the disruption to the employer's operations if additional leave is granted
beyond the period allowed by the policy. In determining whether undue hardship exists, the employer should
consider how much additional leave is needed (e.g., two weeks, six months, one year?).

51. See Schmidt v. Safeway Inc., 864 F. Supp. 991, 996-97, 3 AD Cas. (BNA) 1141, 1145-46 (D. Or. 1994);
Corbett v. National Products Co., 4 AD Cas. (BNA) 987, 990 (E.D. Pa. 1995).
52. See EEOC Enforcement Guidance: Workers' Compensation and the ADA at 16, 8 FEP Manual (BNA)
405:7391, 7399 (1996) [hereinafter Workers' Compensation and the ADA]. See also pp. 37-45, infra, for
information on reassignment as a reasonable accommodation.

53. Cf. Kiel v. Select Artificials, 142 F.3d 1077, 1080, 8 AD Cas. (BNA) 43, 44 (8th Cir. 1998).

54. See Criado v. IBM, 145 F.3d 437, 444-45, 8 AD Cas. (BNA) 336, 341 (1st Cir. 1998).

55. But see Matthews v. Commonwealth Edison Co., 128 F.3d 1194, 1197-98, 7 AD Cas. (BNA) 1651, 1653-54
(7th Cir. 1997) (an employee who, because of a heart attack, missed several months of work and returned on a
part-time basis until health permitted him to work full-time, could be terminated during a RIF based on his
lower productivity). In reaching this decision, the Seventh Circuit failed to consider that the employee needed
leave and a modified schedule as reasonable accommodations for his disability, and that the accommodations
became meaningless when he was penalized for using them.

56. If an employee, however, qualifies for leave under the Family and Medical Leave Act, an employer may not
require him/her to remain on the job with an adjustment in lieu of taking leave. See 29 C.F.R. § 825.702(d)(1)
(1997).

57. See Question 9, supra.

58. For more detailed information on issues raised by the interplay between these statutes, refer to the
FMLA/ADA Fact Sheet listed in the Appendix.

59. Employers should remember that many employees eligible for FMLA leave will not be entitled to leave as a
reasonable accommodation under the ADA, either because they do not meet the ADA's definition of disability
or, if they do have an ADA disability, the need for leave is unrelated to that disability.

60. 29 C.F.R. §§ 825.214(a), 825.215 (1997).

61. For further information on the undue hardship factors, see infra pp. 55-56.

62. 29 C.F.R. § 825.702(c)(4) (1997).

63. 42 U.S.C. §12111 (9) (B) (1994); see Ralph v. Lucent Technologies, Inc., 135 F.3d 166, 172, 7 AD Cas.
(BNA) 1345, 1349 (1st Cir. 1998) (a modified schedule is a form of reasonable accommodation).

64. See US Airways, Inc. v. Barnett, 535 U.S., 122 S. Ct. 1516, 1521 (2002).

65. Certain courts have characterized attendance as an "essential function." See, e.g., Carr v. Reno, 23 F.3d
525, 530, 3 AD Cas. (BNA) 434, 438 (D.C. Cir. 1994); Jackson v. Department of Veterans Admin., 22 F.3d 277,
278-79, 3 AD Cas. (BNA) 483, 484 (11th Cir. 1994). Attendance, however, is not an essential function as
defined by the ADA because it is not one of "the fundamental job duties of the employment position." 29 C.F.R.
§ 1630.2(n)(1) (1997) (emphasis added). As the regulations make clear, essential functions are duties to be
performed. 29 C.F.R. § 1630.2(n)(2) (1997). See Haschmann v. Time Warner Entertainment Co., 151 F.3d 591,
602, 8 AD Cas. (BNA) 692, 701 (7th Cir. 1998); Cehrs v. Northeast Ohio Alzheimer's, 155 F.3d 775, 782-83, 8
AD Cas. (BNA) 825, 830-31 (6th Cir. 1998).

On the other hand, attendance is relevant to job performance and employers need not grant all requests for a
modified schedule. To the contrary, if the time during which an essential function is performed is integral to its
successful completion, then an employer may deny a request to modify an employee's schedule as an undue
hardship.

66. Employers covered under the Family and Medical Leave Act (FMLA) should determine whether any denial of
leave or a modified schedule is also permissible under that law. See 29 C.F.R. § 825.203 (1997).

67. For more detailed information on issues raised by the interplay between these statutes, refer to the
FMLA/ADA Fact Sheet listed in the Appendix.

68. See infra pp. 37-45 for more information on reassignment, including under what circumstances an
employer and employee may voluntarily agree that a transfer is preferable to having the employee remain in
his/her current position.
69. 29 C.F.R. § 825.204 (1997); see also special rules governing intermittent leave for instructional employees
at §§ 825.601, 825.602.

70. 29 C.F.R. §§ 825.209, 825.210 (1997).

71. 42 U.S.C. § 12111(9)(B) (1994); 29 C.F.R. § 1630.2(o)(2)(ii) (1997). See US Airways, Inc. v. Barnett, 535
U.S., 122 S. Ct. 1516, 1521 (2002).

72. See Dutton v. Johnson County Bd. of Comm'rs, 868 F. Supp. 1260, 1264-65, 3 AD Cas. (BNA) 1614, 1618
(D. Kan. 1994).

73. See 29 C.F.R. pt. 1630 app. § 1630.15(b), (c) (1997). See also Question 17, supra.

74. But cf. Miller v. Nat'l Casualty Co., 61 F.3d 627, 629-30, 4 AD Cas. (BNA) 1089, 1090 (8th Cir. 1995) (court
refuses to find that employee's sister had requested reasonable accommodation despite the fact that the sister
informed the employer that the employee was having a medical crisis necessitating emergency hospitalization).

75. For information on how reassignment may apply to employers who provide light duty positions, see
Workers' Compensation and the ADA, supra note 52, at 20-23, 8 FEP Manual (BNA) 405:7401-03.

76. 42 U.S.C. § 12111(9)(B) (1994); 29 C.F.R. § 1630.2(o)(2)(ii) (1997). See Benson v. Northwest Airlines,
Inc., 62 F.3d 1108, 1114, 4 AD Cas. (BNA) 1234, 1238 (8th Cir. 1995); Monette v. Electronic Data Sys. Corp.,
90 F.3d 1173, 1187, 5 AD Cas. (BNA) 1326, 1338 (6th Cir. 1996); Gile v. United Airlines, Inc., 95 F.3d 492,
498, 5 AD Cas. (BNA) 1466, 1471 (7th Cir. 1996).

Reassignment is available only to employees, not to applicants. 29 C.F.R. pt. 1630 app. § 1630.2(o) (1997).

77. 29 C.F.R. pt. 1630 app. § 1630.2(o) (1997); see Haysman v. Food Lion, Inc., 893 F. Supp. 1092, 1104, 4
AD Cas. (BNA) 1297, 1305 (S.D. Ga. 1995).

Some courts have found that an employee who is unable to perform the essential functions of his/her current
position is unqualified to receive a reassignment. See, e.g., Schmidt v. Methodist Hosp. of Indiana, Inc., 89 F.3d
342, 345, 5 AD Cas. (BNA) 1340, 1342 (7th Cir. 1996); Pangalos v. Prudential Ins. Co. of Am., 5 AD Cas. (BNA)
1825, 1826 (E.D. Pa. 1996). These decisions, however, nullify Congress' inclusion of reassignment in the ADA.
An employee requires a reassignment only if s/he is unable to continue performing the essential functions of
his/her current position, with or without reasonable accommodation. Thus, an employer must provide
reassignment either when reasonable accommodation in an employee's current job would cause undue
hardship or when it would not be possible. See Aka v. Washington Hosp. Ctr.,156 F.3d 1284, 1300-01, 8 AD
Cas. (BNA) 1093, 1107-08 (D.C. Cir. 1998); Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 678, 7 AD
Cas. (BNA) 1872, 1880 (7th Cir. 1998); see also ADA and Psychiatric Disabilities, supra note 27, at 28, 8 FEP
Manual (BNA) 405:7476; Workers' Compensation and the ADA, supra note 52, at 17-18, 8 FEP Manual (BNA)
405:7399-7400.

78. 29 C.F.R. § 1630.2(m) (1997); 29 C.F.R. pt. 1630 app. §§ 1630.2(m), 1630.2(o)(1997). See Stone v.
Mount Vernon, 118 F.3d 92, 100-01, 6 AD Cas. (BNA) 1685, 1693 (2d Cir. 1997).

79. See Quintana v. Sound Distribution Corp., 6 AD Cas. (BNA) 842, 846 (S.D.N.Y. 1997).

80. See 29 C.F.R. pt. 1630 app. §1630.2(o) (1997); Senate Report, supra note 6, at 31; House Education and
Labor Report, supra note 6, at 63.

81. For suggestions on what the employee can do while waiting for a position to become vacant within a
reasonable amount of time, see note 89, infra.

82. See 29 C.F.R. pt. 1630 app. § 1630.2(o) (1997); see also White v. York Int'l Corp., 45 F.3d 357, 362, 3 AD
Cas. (BNA) 1746, 1750 (10th Cir. 1995).

83. See 29 C.F.R. pt. 1630 app. § 1630.2(o) (1997).

84. See US Airways, Inc. v. Barnett, 535 U.S., 122 S. Ct. 1516, 1521, 1524 (2002); see also Aka v. Washington
Hosp. Ctr., 156 F.3d 1284, 1304-05, 8 AD Cas. (BNA) 1093, 1110-11 (D.C. Cir. 1998); United States v. Denver,
943 F. Supp. 1304, 1312, 6 AD Cas. (BNA) 245, 252 (D. Colo. 1996). See also Question 24, supra.
85. 42 U.S.C. § 12111(9)(B) (1994); 29 C.F.R. § 1630.2(o)(2)(ii) (1997); see Hendricks-Robinson v. Excel
Corp., 154 F.3d 685, 695, 8 AD Cas. (BNA) 875, 883 (7th Cir. 1998); see generally Dalton v. Subaru-Isuzu
Automotive, Inc., 141 F.3d 667, 677-78, 7 AD Cas. (BNA) 1872, 1880-81 (7th Cir. 1998).

86. See Gile v. United Airlines, Inc., 95 F.3d 492, 499, 5 AD Cas. (BNA) 1466, 1472 (7th Cir. 1996); see
generally United States v. Denver, 943 F. Supp. 1304, 1311-13, 6 AD Cas. (BNA) 245, 251-52 (D. Colo. 1996).

Some courts have limited the obligation to provide a reassignment to positions within the same department or
facility in which the employee currently works, except when the employer's standard practice is to provide
inter-department or inter-facility transfers for all employees. See, e.g., Emrick v. Libbey-Owens-Ford Co., 875 F.
Supp. 393, 398, 4 AD Cas.(BNA) 1, 4-5 (E.D. Tex. 1995). However, the ADA requires modification of workplace
policies, such as transfer policies, as a form of reasonable accommodation. See Question 24, supra. Therefore,
policies limiting transfers cannot be a per se bar to reassigning someone outside his/her department or facility.
\ Furthermore, the ADA requires employers to provide reasonable accommodations, including reassignment,
regardless of whether such accommodations are routinely granted to non-disabled employees. See Question
26, supra.

87. See Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 695-96, 697-98, 8 AD Cas. (BNA) 875, 883, 884 (7th
Cir. 1998) (employer cannot mislead disabled employees who need reassignment about full range of vacant
positions; nor can it post vacant positions for such a short period of time that disabled employees on medical
leave have no realistic chance to learn about them); Mengine v. Runyon, 114 F.3d 415, 420, 6 AD Cas. (BNA)
1530, 1534 (3d Cir. 1997) (an employer has a duty to make reasonable efforts to assist an employee in
identifying a vacancy because an employee will not have the ability or resources to identify a vacant position
absent participation by the employer); Woodman v. Runyon, 132 F.3d 1330, 1344, 7 AD Cas. (BNA) 1189, 1199
(10th Cir. 1997) (federal employers are far better placed than employees to investigate in good faith the
availability of vacant positions).

88. See Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 678, 7 AD Cas. (BNA)1872, 1881 (7th Cir.
1998) (employer must first identify full range of alternative positions and then determine which ones employee
qualified to perform, with or without reasonable accommodation); Hendricks-Robinson v. Excel Corp., 154 F.3d
685, 700, 8 AD Cas. (BNA) 875, 886-87 (7th Cir. 1998) (employer's methodology to determine if reassignment
is appropriate does not constitute the "interactive process" contemplated by the ADA if it is directive rather
than interactive); Mengine v. Runyon, 114 F.3d 415, 419-20, 6 AD Cas. (BNA) 1530, 1534 (3d Cir. 1997) (once
an employer has identified possible vacancies, an employee has a duty to identify which one he is capable of
performing).

89. If it will take several weeks to determine whether an appropriate vacant position exists, the employer and
employee should discuss the employee's status during that period. There are different possibilities depending
on the circumstances, but they may include: use of accumulated paid leave, use of unpaid leave, or a
temporary assignment to a light duty position. Employers also may choose to take actions that go beyond the
ADA's requirements, such as eliminating an essential function of the employee's current position, to enable an
employee to continue working while a reassignment is sought.

90. 42 U.S.C. § 12111(9)(b) (1994); 29 C.F.R. pt. 1630 app. § 1630.2(o) (1997). See Senate Report, supra
note 6, at 31 ("If an employee, because of disability, can no longer perform the essential functions of the job
that she or he has held, a transfer to another vacant job for which the person is qualified may prevent the
employee from being out of work and the employer from losing a valuable worker."). See Wood v. County of
Alameda, 5 AD Cas. (BNA) 173, 184 (N.D. Cal. 1995) (when employee could no longer perform job because of
disability, she was entitled to reassignment to a vacant position, not simply an opportunity to "compete"); cf.
Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1304-05, 8 AD Cas. (BNA) 1093, 1110-11 (D.C. Cir. 1998) (the
court, in interpreting a collective bargaining agreement provision authorizing reassignment of disabled
employees, states that "[a]n employee who is allowed to compete for jobs precisely like any other applicant has
not been "reassigned"); United States v. Denver, 943 F. Supp. 1304, 1310-11, 6 AD Cas. (BNA) 245, 250 (D.
Colo. 1996) (the ADA requires employers to move beyond traditional analysis and consider reassignment as a
method of enabling a disabled worker to do a job).

Some courts have suggested that reassignment means simply an opportunity to compete for a vacant position.
See, e.g., Daugherty v. City of El Paso, 56 F.3d 695, 700, 4 AD Cas. (BNA) 993, 997 (5th Cir. 1995). Such an
interpretation nullifies the clear statutory language stating that reassignment is a form of reasonable
accommodation. Even without the ADA, an employee with a disability may have the right to compete for a
vacant position.
91. 29 C.F.R. pt. 1630 app. § 1630.2(o) (1997).

92. See US Airways, Inc. v. Barnett, 535 U.S., 122 S. Ct. 1516, 1524-25 (2002).

93. Id.

94. Id. at 1525. In a lawsuit, the plaintiff/employee bears the burden of proof to show the existence of "special
circumstances" that warrant a jury's finding that a reassignment is "reasonable" despite the presence of a
seniority system. If an employee can show "special circumstances," then the burden shifts to the employer to
show why the reassignment would pose an undue hardship. See id.

95. Id.

96. Id. The Supreme Court made clear that these two were examples of "special circumstances" and that they
did not constitute an exhaustive list of examples. Furthermore, Justice Stevens, in a concurring opinion, raised
additional issues that could be relevant to show special circumstances that would make it reasonable for an
employer to make an exception to its seniority system. See id. at 1526.

97. The discussions and examples in this section assume that there is only one effective accommodation and
that the reasonable accommodation will not cause an undue hardship.

98. See Ralph v. Lucent Technologies, Inc., 135 F.3d 166, 171, 7 AD Cas. (BNA) 1345, 1349 (1st Cir. 1998).

99. For a discussion on ways to modify supervisory methods, see ADA and Psychiatric Disabilities, supra note
27, at 26-27, 8 FEP Manual (BNA) 405:7475.

100. See 29 C.F.R. § 1630.2(o)(1)(ii), (2)(ii) (1997) (modifications or adjustments to the manner or
circumstances under which the position held or desired is customarily performed that enable a qualified
individual with a disability to perform the essential functions).

101. Courts have differed regarding whether "work-at-home" can be a reasonable accommodation. Compare
Langon v. Department of Health and Human Servs., 959 F.2d 1053, 1060, 2 AD Cas. (BNA) 152, 159 (D.C. Cir.
1992); Anzalone v. Allstate Insurance Co., 5 AD Cas. (BNA) 455, 458 (E.D. La. 1995); Carr v. Reno, 23 F.3d
525, 530, 3 AD Cas. (BNA) 434, 437-38 (D.D.C. 1994), with Vande Zande v. Wisconsin Dep't of Admin., 44 F.3d
538, 545, 3 AD Cas. (BNA) 1636, 1640 (7th Cir. 1995). Courts that have rejected working at home as a
reasonable accommodation focus on evidence that personal contact, interaction, and coordination are needed
for a specific position. See, e.g., Whillock v. Delta Air Lines, 926 F. Supp. 1555, 1564, 5 AD Cas. (BNA) 1027
(N.D. Ga. 1995), aff'd, 86 F.3d 1171, 7 AD Cas. (BNA) 1267 (11th Cir. 1996); Misek-Falkoff v. IBM Corp., 854 F.
Supp. 215, 227-28, 3 AD Cas. (BNA) 449, 457-58 (S.D.N.Y. 1994), aff'd, 60 F.3d 811, 6 AD Cas. (BNA) 576 (2d
Cir. 1995).

102. See 29 C.F.R. § 1630.15(d) (1997).

103. See Siefken v. Arlington Heights, 65 F.3d 664, 666, 4 AD Cas. (BNA) 1441, 1442 (7th Cir. 1995).
Therefore, it may be in the employee's interest to request a reasonable accommodation before performance
suffers or conduct problems occur. For more information on conduct standards, including when they are job-
related and consistent with business necessity, see ADA and Psychiatric Disabilities, supra note 27, at 29-32, 8
FEP Manual (BNA) 405:7476-78.

An employer does not have to offer a "firm choice" or a "last chance agreement" to an employee who performs
poorly or who has engaged in misconduct because of alcoholism. "Firm choice" or "last chance agreements"
involve excusing past performance or conduct problems resulting from alcoholism in exchange for an
employee's receiving substance abuse treatment and refraining from further use of alcohol. Violation of such an
agreement generally warrants termination. Since the ADA does not require employers to excuse poor
performance or violation of conduct standards that are job-related and consistent with business necessity, an
employer has no obligation to provide "firm choice" or a "last chance agreement" as a reasonable
accommodation. See Johnson v. Babbitt, EEOC Docket No. 03940100 (March 28, 1996). However, an employer
may choose to offer an employee a "firm choice" or a "last chance agreement."

104. See ADA and Psychiatric Disabilities, supra note 27, at 31-32, 8 FEP Manual (BNA) 405:7477-78.

105. See Robertson v. The Neuromedical Ctr., 161 F.3d 292, 296 (5th Cir. 1998); see also ADA and Psychiatric
Disabilities, supra note 27, at 27-28, 8 FEP Manual (BNA) 405:7475.
106. While from an employer's perspective it may appear that an employee is "failing" to use medication or
follow a certain treatment, such questions can be complex. There are many reasons why a person would
choose to forgo treatment, including expense and serious side effects.

107. See Vande Zande v. Wisconsin Dep't of Admin., 44 F.3d 538, 544, 3 AD Cas. (BNA) 1636, 1639 (7th Cir.
1995).

108. See 29 C.F.R. pt. 1630 app. § 1630.9 (1997); see also House Judiciary Report, supra note 6, at 39; House
Education and Labor Report, supra note 6, at 65; Senate Report, supra note 6, at 34.

See, e.g., Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 165, 5 AD Cas. (BNA) 1653, 1659 (5th Cir. 1996);
Tips v. Regents of Texas Tech Univ., 921 F. Supp. 1515, 1518 (N.D. Tex. 1996); Cheatwood v. Roanoke Indus.,
891 F. Supp. 1528, 1538, 5 AD Cas. (BNA) 141, 147 (N.D. Ala. 1995); Mears v. Gulfstream Aerospace Corp.,
905 F. Supp. 1075, 1080, 5 AD Cas. (BNA) 1295, 1300 (S.D. Ga. 1995), aff'd, 87 F.3d 1331, 6 AD Cas. (BNA)
1152 (11th Cir. 1996). But see Schmidt v. Safeway Inc., 864 F. Supp. 991, 997, 3 AD Cas. (BNA) 1141, 1146-
47 (D. Or. 1994) (employer had obligation to provide reasonable accommodation because it knew of the
employee's alcohol problem and had reason to believe that an accommodation would permit the employee to
perform the job).

An employer may not assert that it never received a request for reasonable accommodation, as a defense to a
claim of failure to provide reasonable accommodation, if it actively discouraged an individual from making such
a request.

For more information about an individual requesting reasonable accommodation, see Questions 1-4, supra.

109. See Question 5, supra, for information on the interactive process.

110. 29 C.F.R. pt. 1630 app. § 1630.9 (1997).

111. 42 U.S.C. § 12112(d)(3)(B), (d)(4)(C) (1994); 29 C.F.R. § 1630.14(b)(1) (1997). The limited exceptions
to the ADA confidentiality requirements are:
(1) supervisors and managers may be told about necessary restrictions on the work or duties of the employee
and about necessary accommodations; (2) first aid and safety personnel may be told if the disability might
require emergency treatment; and (3) government officials investigating compliance with the ADA must be
given relevant information on request. In addition, the Commission has interpreted the ADA to allow employers
to disclose medical information in the following circumstances: (1) in accordance with state workers'
compensation laws, employers may disclose information to state workers' compensation offices, state second
injury funds, or workers' compensation insurance carriers; and (2) employers are permitted to use medical
information for insurance purposes. See 29 C.F.R. pt. 1630 app. §1630.14(b) (1997); Preemployment
Questions and Medical Examinations, supra note 27, at 23, 8 FEP Manual (BNA) 405:7201; Workers'
Compensation and the ADA, supra note 52, at 7, 8 FEP Manual (BNA) 405:7394.

112. The discussions and examples in this section assume that there is only one effective accommodation.

113. See 29 C.F.R. pt. 1630 app. §1630.15(d) (1996); see also Stone v. Mount Vernon, 118 F.3d 92, 101, 6 AD
Cas. (BNA) 1685, 1693 (2d Cir. 1997) (an employer who has not hired any persons with disabilities cannot
claim undue hardship based on speculation that if it were to hire several people with disabilities it may not have
sufficient staff to perform certain tasks); Bryant v. Better Business Bureau of Greater Maryland, 923 F. Supp.
720, 735, 5 AD Cas. (BNA) 625, 634 (D. Md. 1996).

114. See 42 U.S.C. § 12111(10)(B) (1994); 29 C.F.R. § 1630.2(p)(2) (1997); 29 C.F.R. pt. 1630 app. §
1630.2(p) (1997); TAM, supra note 49, at 3.9, 8 FEP Manual (BNA) 405:7005-07.

115. See Senate Report, supra note 6, at 36; House Education and Labor Report, supra note 6, at 69. See also
29 C.F.R. pt. 1630 app. § 1630.2(p) (1997).

116. See the Appendix on how to obtain information about the tax credit and deductions.

117. See 29 C.F.R. pt. 1630 app. § 1630.15(d) (1997).

118. Failure to transfer marginal functions because of its negative impact on the morale of other employees
also could constitute disparate treatment when similar morale problems do not stop an employer from
reassigning tasks in other situations.
119. See Haschmann v. Time Warner Entertainment Co., 151 F.3d 591, 600-02, 8 AD Cas. (BNA) 692, 699-701
(7th Cir. 1998).

120. See Criado v. IBM, 145 F.3d 437, 444-45, 8 AD Cas. (BNA) 336, 341 (1st Cir. 1998).

121. The ADA's definition of undue hardship does not include any consideration of a cost-benefit analysis. See
42 U.S.C. § 12111(10) (1994); see also House Education and Labor Report, supra note 6, at 69 ("[T]he
committee wishes to make clear that the fact that an accommodation is used by only one employee should not
be used as a negative factor counting in favor of a finding of undue hardship.").

Furthermore, the House of Representatives rejected a cost-benefit approach by defeating an amendment which
would have presumed undue hardship if a reasonable accommodation cost more than 10% of the employee's
annual salary. See 136 Cong. Rec. H2475 (1990), see also House Judiciary Report, supra note 6, at 41; 29
C.F.R. pt. 1630 app. § 1630.15(d) (1997).

Despite the statutory language and legislative history, some courts have applied a cost-benefit analysis. See,
e.g., Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1184 n.10, 5 AD Cas. (BNA) 1326, 1335 n.10 (6th
Cir. 1996); Vande Zande v. Wisconsin Dep't of Admin., 44 F.3d 538, 543, 3 AD Cas. (BNA) 1636, 1638-39 (7th
Cir. 1995).

122. See 42 U.S.C. § 12112(b)(2) (1994); 29 C.F.R. § 1630.6 (1997) (prohibiting an employer from
participating in a contractual relationship that has the effect of subjecting qualified applicants or employees
with disabilities to discrimination).

123. See 42 U.S.C. § 12203(b) (1994); 29 C.F.R. § 1630.12(b) (1997).

124. For example, under Title III of the ADA a private entity that owns a building in which goods and services
are offered to the public has an obligation, subject to certain limitations, to remove architectural barriers so
that people with disabilities have equal access to these goods and services. 42 U.S.C.

§ 12182(b)(2)(A)(iv) (1994). Thus, the requested modification may be something that the property owner
should have done to comply with Title III.

125. US Airways, Inc. v. Barnett, 535 U.S., 122 S. Ct. 1516, 1523 (2002).

126. Id.

127. See Questions 5-10 for a discussion of the interactive process.

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 Human Resources

Operating Procedure 150.3

Reasonable Accommodations
Authority:
Directive 150, Employee Benefits

Effective Date: July 1, 2019

Amended:
Supersedes:

Virginia Operating Procedure 150.3, April 1, 2015

Access: Public Restricted
Incarcerated Offender
Department ACA/PREA Standards:
5-1C-4054; 4-4054; 4-ACRS-7E-03;

of
4-APPFS-3E-03; 2-CO-1C-09-1; 1-CTA-1C-03-1

Corrections
Content Brittany Crane
Owner: Human Resources Assistant Director
Signature Copy on File 5/21/19
Signature Date
Lucinda Childs-White
Reviewer: Director of Human Resources
Signature Copy on File 5/21/19
Signature Date
Joseph W. Walters
Signatory: Deputy Director for Administration
Signature Copy on File 5/23/19
Signature Date

REVIEW
The Content Owner will review this operating procedure annually and re-write it no later than three years after
the effective date.

COMPLIANCE
This operating procedure applies to all units operated by the Virginia Department of Corrections. Practices and
procedures must comply with applicable State and Federal laws and regulations, ACA standards, PREA standards,
and DOC directives and operating procedures.

Page 1 of 10
Operating Procedure 150.3, Reasonable Accommodations Effective Date: July 1, 2019

Table of Contents
PURPOSE ............................................................................................................................................................... 3 
PROCEDURE ......................................................................................................................................................... 3 
I.  Applicability and Responsibility ................................................................................................................. 3 
II.  Interactive Process for Job Assistance ........................................................................................................ 3 
III.  Supervisor Authority to Approve Accommodation .................................................................................... 4 
IV.  Referral to the DOC Benefits Manager Required ....................................................................................... 6 
V.  DOC Benefits Manager Responsibility ....................................................................................................... 7 
VI.  Employee Status Pending Review of Accommodation or Assistance Request .......................................... 8 
VII.  Employee Work Performance and Evaluations........................................................................................... 8 
DEFINITIONS OF TERMS USED IN THIS OPERATING PROCEDURE ......................................................... 9 
REFERENCES...................................................................................................................................................... 10 
ATTACHMENTS ................................................................................................................................................. 10 
FORM CITATIONS ............................................................................................................................................. 10 

VIRGINIA DEPARTMENT OF CORRECTIONS Page 2 of 10

 Operating Procedure 150.3, Reasonable Accommodations Effective Date: July 1, 2019

PURPOSE
In compliance with the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. (ADA), COV §51.5-
1 et seq., The Virginians with Disabilities Act, and Executive Order Number One (2018), Equal Opportunity, this
operating procedure provides guidance for Department of Corrections employees to request accommodations and
short term temporary adjustments to work assignments based on their medical/physical condition.

PROCEDURE
I. Applicability and Responsibility
A. This operating procedure applies to current employees and applicants of the Department of Corrections
and serves as a mechanism to process requests for reasonable accommodation to the known physical
and/or mental impairments of a qualified individual with a disability, either an applicant or an employee.
(5-1C-4054; 4-4054; 4-ACRS-7E-03; 4-APPFS-3E-03; 2-CO-1C-09-1; 1-CTA-1C-03-1)
B. Each Organizational Unit Head, in consultation with their Human Resource Officer, is responsible for
making decisions that comply with Americans with Disabilities Act (ADA) regulations to address
employee’s requests for temporary work adjustments, assignments, or accommodations that last 90
calendar days or less.
C. Requests for accommodation to be made after returning from extended absences should be submitted in
advance of when an employee returns to work and evaluated using the information provided in
Attachment 1, Return to Work Program.
D. The DOC Benefits Manager and/or ADA Committee are responsible for decisions on all requests for
reasonable accommodations expected to last more than 90 days.
E. Organizational Unit Heads or designees, and Human Resource Officers are responsible for identifying
situations where employee work adjustments, assignments, or accommodations are anticipated to exceed
90 calendar days and should notify the DOC Benefits Manager or designee as soon as possible.
F. All employees should be informed of the process for requesting reasonable accommodations related to a
physical or mental impairment, as outlined in this operating procedure.
G. A health care provider may be required to certify the need for accommodations expected to be permanent
or in excess of 90 calendar days in duration.
II. Interactive Process for Job Assistance
A. In determining appropriate job assistance, applicants, employees, managers, and human resource staff
must use the interactive process, which is an information-gathering approach that centers on the
communication between an employer and the individual requesting reasonable accommodation.
1. The interactive process is intended to be flexible and often involves obtaining relevant information
from the requestor, their health care provider, a supervisor or manager, the Organizational Unit Head,
the Human Resource Officer, and/or DOC Benefits Manager.
2. Information gathered during the interactive process will be used to make an informed decision about
the following: whether the requestor is covered as an individual with a disability and, if so, what
reasonable accommodation(s) will effectively eliminate the barrier identified by the requestor and
permit an equal opportunity to apply for a job, perform a job, gain access to the workplace, or enjoy
the benefits and privileges of employment available to employees with no known disability.
3. Regular and timely communication during the interactive process is essential to compliance with the
ADA and the success of the accommodation outcome.
B. Applicants and employees must notify the DOC when accommodations or adjustments are needed
concerning some aspect of the application process, the job, or a benefit of employment for a reason related

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 Operating Procedure 150.3, Reasonable Accommodations Effective Date: July 1, 2019

to a physical or mental impairment.

1. Requests can be submitted verbally or in writing to the Organizational Unit Head or Human Resource
Officer (HRO).
2. The Organizational Unit Head or HRO must document all verbal requests for accommodation in
writing.
3. Generally, after a request for accommodation has been made, the interactive process begins as soon as
possible to determine what, if any, accommodation should be provided.
C. If a supervisor or any manager in an employee’s chain of command believes that a physical or mental
impairment is causing a performance or conduct problem, they may ask the employee how to solve the
problem and if the employee needs a reasonable accommodation.
D. When a supervisor or any manager in an employee’s chain of command receives a verbal or written
request for accommodation, they must do each of the following:
1. Document the request in writing
2. Consult with the employee to identify their exact limitations, and discuss what type of accommodation
would be effective.
3. Contact the unit’s HRO to assess the work related issue, the employee's need for assistance, and
appropriate reasonable accommodations, if any.
E. Where more than one accommodation would work, the DOC may choose the one that is less costly or that
is easier to provide. Please note that post and shift assignments are the prerogative of management.
F. The employee must complete the Employee Request for Job Assistance/Accommodation 150_F1 if
requesting job assistance or job accommodation that exceeds or is expected to exceed 90 calendar days.
G. The employee may be required to submit medical certification for all accommodation requests if the
impairment is not readily visible or known. The medical certification should describe the following:
1. The extent or severity of the impairment
2. The specific limitations the impairment imposes upon the employee
3. The anticipated length of time before the employee can fully resume the responsibilities of their regular
position
H. Employees should forward medical certifications directly to the local unit Human Resources office in a
confidential manner. The Organizational Unit Head and HRO should review medical certifications in
considering the continuance of adjusted work assignments.
I. The Organizational Unit Head or HRO, in consultation with the DOC Benefits Manager, may verify an
employee’s personal medical certification by sending the employee, at agency expense, to another health
care provider for a second opinion regarding the short-term impairment.
III. Supervisor Authority to Approve Accommodation
A. If the Organizational Unit Head determines the assistance can be easily provided with little or no
disruption or expense, and the impact to the agency is insignificant, the assistance will be documented
and provided without extensive intrusion into the employee's physical or mental impairment or medical
history.
For example, a Fiscal Technician requests a calculator with oversized numbers. The Organizational Unit
Head is in the process of purchasing calculators, and the calculator with the oversize numbers is the same
price as the calculator with standard size numbers.
B. The following are examples of cases when a supervisor may provide assistance or make an
accommodation without intrusion into an employee's physical or mental impairment or without prior

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Operating Procedure 150.3, Reasonable Accommodations Effective Date: July 1, 2019

Organizational Unit Head approval. Employees (security employees or other employees) who work
inside the secure perimeter of a facility are not subject to these approvals, assistance, or accommodations.
(See the Security Employees section below.) These situations are illustrative and not intended to be all
inclusive.
1. Allowing an employee to take medication at prescribed times when the medication does not impair
judgment, alter personality, or impede physical reactions
2. Allowing an employee to eat snacks and meals as necessary to maintain proper body functioning
3. Allowing an employee to go to the rest room as needed when departure from the unit is not disruptive
4. Allowing an employee to wear/use prosthetic devices to enhance physical functions
5. Allowing an employee to use their own computer monitor
6. Allowing an employee to use their own amplifying device for the telephone
7. Allowing an employee to use their own foot stool needed for circulation problems
8. Granting an employee a flex schedule for medical treatment if flex schedules are generally allowed in
the work unit
C. The supervisor, with assistance from the Human Resource Officer, must answer the following questions
to determine if the request should be referred to the Organizational Unit Head. If the answer is YES to
Question #1 and any of Questions #2 - 5, the supervisor CANNOT approve the assistance requested. This
situation must be referred to the Organizational Unit Head and HRO for review.
1. Is the assistance requested necessary for the employee to satisfactorily perform their duties? AND (any
one of the below)
2. Does the assistance requested include purchases not currently budgeted? OR
3. Will the assistance requested impact how other staff performs their job duties? OR
4. Will the assistance requested alter the manner in which the agency or unit does business? OR
5. Is the assistance that is requested disruptive?
D. The following are examples of situations that must be reported to the Organizational Unit Head and HRO
when assistance or an accommodation is requested. These situations are illustrative and not intended to
be all inclusive.
1. A request that requires a financial expenditure
2. A request that alters the essential job functions
3. A request that impacts how other employees or units perform their job duties
4. A request not consistent with state, DOC, or unit policies, operating procedures, or practices
5. A request to telecommute, either part time or full time
6. The supervisor is unable to provide the assistance or accommodation that allows the employee to
perform the essential functions of their job
7. When neither supervisor nor employee knows what options are available for the employee with a
disability to satisfactorily perform the essential functions of the job
E. Security Employees - The following considerations apply for assistance or accommodation for security
employees or other employees who work within a secured perimeter of a correctional facility.
1. When assistance or accommodation is requested by security employees, the first priority must be
public safety, which includes protection of the citizens of the Commonwealth, self, co-workers, and
the security of offenders.
2. Any requests that preclude or tend to preclude the public safety priority will not be authorized.

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 Operating Procedure 150.3, Reasonable Accommodations Effective Date: July 1, 2019

3. The following are examples of assistance or accommodations that CANNOT be made inside a
facility’s secure perimeter, on a security post, or for positions responsible for direct offender
supervision.
a. Allowing the use of prescription or non-prescription drugs that may impair judgment or slow
reflexes
b. Allowing any prohibited items (including food items) inside the secure perimeter
c. Allowing an Officer to leave a security post without notice or relief or on a schedule that hinders
the ability to effectively manage security and offender population
d. Allowing any drugs or devices which may negatively impact visual and auditory perception
e. Precluding an Officer from being available to stand all posts for more than 90 days
f. Any accommodation that excludes offender contact (This provision also applies to Probation and
Parole employees)
g. Any exceptions to training and certification or re-certifications when waivers are not allowed by
federal, state, local, or DOC rules and regulations
h. Requiring the Officer to be excluded from physical altercations
i. Any accommodation that limits or eliminates the performance of any essential job functions
j. Allowing any device, equipment, or material (including medical) inside a secured perimeter that
may be a security risk
IV. Referral to the DOC Benefits Manager Required
A. The Unit Head or HRO will refer requests for accommodation to the DOC Benefits Manager or designee
when the employee's request for accommodation:
1. Is not readily available
2. Cannot be provided in the employee's work unit
3. Requires considerable physical renovation, structural changes, or atypical schedule restructuring
4. Impacts how another employee performs their job
5. Requires a significant expenditure not currently budgeted
6. Changes the way the unit does business
7. Exceeds or is expected to exceed 90 calendar days
8. Any other case, at the discretion of the Organizational Unit Head, when there is significant agency or
operational impact
B. Prior to a formal referral to the DOC Benefits Manager or designee, the Organizational Unit Head or the
HRO must:
1. Identify the essential functions of the employee's job
2. Obtain an Authorization for Release of Information – Job Assistance/ Accommodation 150_F3 from
the employee and request a medical evaluation of the employee's disability and limitations from a
health care provider
3. Request the health care provider to state as specifically as possible the extent and duration of the
disability
4. Provide the employee or their health care provider with a copy of the position description (Employee
Work Profile (EWP) 145_F2 including the Physical Demands Worksheet) with essential job functions
clearly delineated (See Operating Procedure 145.2, Employee Performance Management.)
5. Ask the employee’s health care provider to address the following issues:
a. Identify the essential job functions that the employee is able to perform
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 Operating Procedure 150.3, Reasonable Accommodations Effective Date: July 1, 2019

b. Identify the essential job functions that the employee cannot perform
c. If there are any essential functions the employee cannot perform, ask the health care provider if
they can make any recommendation(s) that would allow the employee to perform the essential job
functions.
C. The employee must be given an opportunity to request an accommodation that would enable the employee
to perform the essential functions of the job.
1. The Organizational Unit Head or designee must complete the Request for Job Assistance/
Accommodation - Organizational Unit Assessment 150_F2 and attach the employee-completed
Employee Request for Job Assistance/ Accommodation 150_F1 and all related medical documentation.
2. The HRO will request an Authorization for Release of Information – Job Assistance/ Accommodation
150_F3 from the employee for authorization to contact the health care provider.
3. The above documentation should be submitted to the DOC Benefits Manager or designee as soon as
possible after the need for assistance has been identified or a request for assistance has been made.
V. DOC Benefits Manager Responsibility
A. The DOC Benefits Manager or designee and/or ADA Committee has the final authority and responsibility
to determine an employee's eligibility for protection under ADA and if practicable, to propose reasonable
accommodations to perform essential functions of the job.
B. A determination will be made concerning the employee’s status as a "qualified individual with a
disability" within the scope of the ADA.
C. Employees from other operating units and other agencies, especially the Department of Rehabilitative
Services, may be invited to provide input regarding accommodations available to enable an employee to
perform the essential functions of the job.
D. The following requirements will be considered when making recommendations for accommodation:
1. The requesting employee must be otherwise qualified, i.e., meet the minimum knowledge, skills and
abilities, training, education, and experience requirements as stated in the Employee Work Profile
(EWP) 145_F2. (See Operating Procedure 145.2, Employee Performance Management.)
2. The disability, as recognized by the ADA, must be known to the DOC.
3. The reasonable accommodation must not pose an undue hardship on the operation of the facility or
work unit. (5-1C-4054; 4-4054; 4-ACRS-7E-03; 4-APPFS-3E-03; 2-CO-1C-09-1; 1-CTA-1C-03-1)
4. Continued employment of an employee with a disability who is requesting accommodation must not
pose a direct threat.
E. Items considered to determine if an accommodation poses an undue hardship for the DOC, include (but
are not limited to):
1. The cost to provide the accommodation
2. The financial resources of the DOC
3. The impact the accommodation will have on the organizational unit
4. Whether the accommodation poses a "direct threat that includes potential breach of security"
F. A decision will normally be made within ten working days of receipt of all requested information.
1. If a decision cannot be made within ten working days, the DOC Benefits Manager or designee must
contact the HRO at the facility or unit on the status of the referral.
2. The HRO must provide written notice of the status to the employee within three working days of the
notification.

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 Operating Procedure 150.3, Reasonable Accommodations Effective Date: July 1, 2019

G. Prior to making a final decision regarding an accommodation, if there are unclear issues about the
requested accommodation, the DOC Benefits Manager or designee may discuss the proposed
accommodation with the Organizational Unit Head, HRO, or both.
H. The DOC Benefits Manager or designee will provide written documentation to the Organizational Unit
Head or designee and HRO regarding the employee's protection under ADA and any accommodation to
be provided.
I. If it is determined that physical plant modifications are necessary, all building changes must be requested
in accordance with the applicable DOC procedure and state guidelines governing construction and
maintenance.
J. The decision of the DOC Benefits Manager and/or ADA Committee is binding on all parties upon delivery
of the decision to the Organizational Unit Head.
1. Upon receipt of the decision, the Organizational Unit Head must immediately implement the
accommodation consistent with the decision and guidance provided by the DOC Benefits Manager or
designee.
2. If the accommodation is implemented and is not effective, the DOC Benefits Manager or designee
should be notified immediately so the decision may be reassessed.
3. If additional medical information is provided or the organizational unit is adversely impacted
following implementation of the accommodation, the DOC Benefits Manager or designee should be
contacted immediately.
VI. Employee Status Pending Review of Accommodation or Assistance Request
A. Decisions regarding assisting or accommodating an employee will be made as quickly as possible, but
when the employee is unable to perform essential functions of the job or continuance in the current
position poses a threat to public safety or the safety of the employee or coworkers, a temporary
accommodation may be made.
B. If the employee cannot perform essential functions of the job, they may be temporarily assigned the duties
of a vacant position or assigned temporary duties outside the current job classification, consistent with
their knowledge, skills, and abilities, pending a final decision regarding the appropriate accommodation.
C. If a vacant position or suitable duties are not available, the employee will be allowed to use accrued sick,
family and personal (if applicable), annual, or compensatory leave or, if eligible, may apply for disability
benefits. If no leave balances are available, the employee will be approved for Unconditional Leave
without Pay pending a final decision regarding accommodation.
VII. Employee Work Performance and Evaluations
A. Supervisors may not give employees with disabilities "special treatment."
1. Employees with disabilities should not be evaluated on a lower standard or a higher standard, nor
disciplined less severely or more severely than other employees.
2. Special treatment is not equal employment opportunity.
B. Supervisors should hold employees with disabilities to the same standards of performance as other
similarly situated employees without disabilities, for performing the essential job functions (with or
without accommodation). If an accommodation is required to perform the essential functions, the
employee should not be evaluated on their performance without the accommodation.
C. Supervisors should also hold employees with disabilities to the same standards of performance for
marginal job functions, unless the disability affects the employee's ability to perform these marginal
functions. If an employee with the disability cannot perform some marginal functions of the job due to
the disability, the supervisor may give the employee other marginal functions (not listed in the current

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Operating Procedure 150.3, Reasonable Accommodations Effective Date: July 1, 2019

Employee Work Profile) that the employee can perform.

D. If disciplinary action is required, it should be implemented consistent with consequences provided for
other employees without disabilities who have committed similar offenses. If mitigating circumstances
are considered for other employees, they must be considered for employees with disabilities.

DEFINITIONS OF TERMS USED IN THIS OPERATING PROCEDURE

ADA Committee - The Department of Corrections Americans with Disabilities Act (ADA) Committee chaired by
the DOC Benefits Manager in the Office of Human Resources that is responsible for reviewing employee requests
for reasonable accommodations that exceed or are expected to exceed 90 calendar days. Committee members
may include Human Resource Managers and other individuals who have technical knowledge of the Act, as
selected by the Director of Human Resources.
Direct Threat - A significant risk of substantial harm to the health or safety of a person with a disability or to
others that cannot be eliminated by reasonable accommodation
Disability - An actual physical or mental impairment that substantially limits one or more major life activities; or
a record of such impairment; or being regarded as having such an impairment
Essential Job Functions - The basic and fundamental job duties of a position that an employee must be able to
perform, with or without a reasonable accommodation, as determined by the supervisor of the position and the
Human Resource Officer for the organizational unit. Essential job functions may include, but are not limited to,
the knowledge, skills, abilities, education, and training noted in the Employee Work Profile (EWP), physical and
mental job requirements; expertise or skill needed to perform the job; and time required to perform a task or
function. The term “essential job functions” does not include marginal functions of the position.
Facility - Any institution or Community Corrections facility
Health Care Provider - A health care professional licensed to practice in the Commonwealth or state where an
employee resides and competent to medically certify physical or psychological/psychiatric conditions; appropriate
professionals include, but are not limited to, physicians, physician assistants, psychiatrists, psychologists, physical
therapists, occupational therapists, speech therapists, vocational rehabilitation specialists, and licensed mental
health professionals.
Major Life Activities - Activities that an average person can perform with little or no difficulty; major life
activities include caring for yourself, performing manual tasks, seeing, hearing, eating, sleeping, walking,
standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and
working. The operation of a major bodily function includes the operation of an individual organ within a body
system.
Medical Certification - A note from the employee’s health care provider, based on the most current medical
knowledge, describing the employee’s functional abilities and limitations in performing the essential functions of
the job, and whether the employee meets DOC health and safety requirements; it is not a request or requirement
for a diagnosis and employees and their attending health care provider should not be asked to provide medical
information outside of the employee’s ability to work, not work, or perform essential job functions.
Offender - An inmate, probationer, parolee, post release supervisee, or other person placed under the supervision
(conditional release) or investigation of the Department of Corrections
Organizational Unit - A DOC unit, such as a correctional facility, regional office, probation and parole office,
Virginia Correctional Enterprises (VCE), Academy for Staff Development, Corrections Construction Unit,
Agribusiness Unit, and individual headquarters unit (i.e. Human Resources, Offender Management, Internal
Audit)
Organizational Unit Head - The person occupying the highest position in a DOC organizational unit
Physical or Mental Impairment - Any physiological disorder, or condition, cosmetic disfigurement, or
anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense
organ, respiratory (including speech organs), cardiovascular, reproductive, immune, digestive, genitourinary,
hemic and lymphatic, skin, and endocrine, etc.; or any mental or psychological disorder, such as mental
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Operating Procedure 150.3, Reasonable Accommodations Effective Date: July 1, 2019

retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities
Qualified Individual with a Disability - A person with a disability who satisfies the requisite skill, experience,
education, and other job-related requirements of the position that person holds or desires to hold and who, with or
without accommodation, can perform the essential job functions of the subject position.
Reasonable Accommodation - Any change in the work environment or the way work tasks are customarily
performed that enables a person with a disability to enjoy equal employment opportunities. There are three
categories of "reasonable accommodations":
 Modifications or adjustments to a job application process that enable a qualified applicant with a disability to
be considered for the position such qualified applicant desires
 Modifications or adjustments to the work environment, or to the manner or circumstances under which the
position held or desired is customarily performed, that enable a qualified person with a disability to perform
the essential functions of that position
 Modifications or adjustments that enable a person with a disability to enjoy equal benefits and privileges of
employment as are enjoyed by its other similarly situated employees without disabilities
Security Employee - Any certified DOC Corrections Officer whose normal duties include immediate control,
supervision, and custody of offenders confined in any state correctional facility, including Community Corrections
facilities
Short-term Impairment or Disability - Any temporary physical or mental impairment or disability, verified by
a health care provider that limits a person’s ability to perform normal job duties and responsibilities for an
anticipated period of 90 calendar days or less.
Undue hardship - An accommodation that would be unduly costly, extensive, substantial, or disruptive; undue
hardship refers not only to financial difficulty, but to accommodations that would fundamentally alter the nature
or operation of the business or work performed by or at the unit or creates a direct threat to the health and safety
of others.

REFERENCES
Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq.
COV §51.5-1 et seq., The Virginians with Disabilities Act
Executive Order Number One (2018), Equal Opportunity
Operating Procedure 145.2, Employee Performance Management

ATTACHMENTS
Attachment 1, Return To Work Program

FORM CITATIONS
Employee Work Profile (EWP) 145_F2
Employee Request for Job Assistance/Accommodation 150_F1
Request for Job Assistance/Accommodation - Organizational Unit Assessment 150_F2
Authorization for Release of Information - Job Assistance/Accommodation 150_F3

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