The Americans with Disabilities Act (ADA), enacted in 1990 and amended in 2008, is landmark legislation that protects the rights of individuals with physical disabilities, visible or invisible, and/or mental health conditions, including autism and PTSD. The ADA ensures that individuals with disabilities have equal opportunities as others to access employment, acquire goods and services, and engage in programs provided by state and local governments. The U.S. Department of Labor and other federal agencies enforce or investigate ADA claims.

The ADA is broken down into five sections or titles, each detailing requirements for specific organizations. Title I applies to employment and is enforced by the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) regarding employment by State and local governments. Title I bars employment agencies, labor organizations, private employers, and state and local governments from discriminating against qualified individuals in all aspects and privileges of employment. However, the ADA does not require employers to hire someone with a disability if a more qualified applicant exists.

EMPLOYER REASONABLE ACCOMMODATION REQUIREMENT

Employers are obligated to provide reasonable accommodations for employees with disabilities. A reasonable accommodation is a change or modification to a work environment or job so an employee with a disability can complete the job application process, perform essential functions of a job, or enjoy the privileges of employment. Examples of reasonable accommodations include a part-time work schedule, reassignment to a vacant position, modifying training materials, or providing a sign language interpreter. However, an employer is not required to provide a reasonable accommodation if it causes an undue hardship or creates a direct threat to the business.

HOW DOES AN EMPLOYEE REQUEST REASONABLE ACCOMMODATIONS FROM AN EMPLOYER?

It can be nerve-wracking to disclose your disability and ask for an adaptation that will allow you to perform your job better. It is even more complicated because there is no right way to ask for reasonable accommodations. So what steps should you take to lessen the likelihood of disability discrimination or retaliation?

Before requesting an accommodation, consider what might best suit your specific circumstances. If you are unsure what changes may better enable you to perform your job, there are online resources with suggestions and common accommodation types. In addition, healthcare providers or disability specialists may have recommendations on effective accommodations. It is always best to have a few different ideas.

Once you have an idea of what accommodations would best serve you, there are three steps to effectively requesting accommodations:

1. Disclose to your Human Resources that you have a disability and explain how the requested accommodation will help you.
2. Engage in the interactive process.
3. Have periodic follow-up discussions to ensure your accommodation meets your needs.

First, you will need to tell your employer that you are disabled. Employers are only required to accommodate disabilities that they are aware of. There are no magic words or phrases you need to say when you make the request. Merely stating that you need something because of your disability or medical condition is sufficient to qualify as a request for accommodation. You do not need to say “reasonable accommodation.” This request can be made in writing or a face-to-face conversation.

The next step is to engage in the “interactive process.” After you make a request, your employer may grant it, deny it, or discuss what would best accommodate your needs. Your employer may ask that you put your request in writing or fill out a form, and they may request medical documentation to establish that you have a disability.

Your employer may grant the accommodation request right away. This is the easiest path for you, but not every employer can grant any and every accommodation request. Instead, maybe your employer says they cannot grant the specific accommodation you requested, but they are willing to work with you to find something else to meet your needs. Your employer is not obligated to grant the first accommodation request you make, even if it would allow you to perfectly perform the essential functions of the job if the accommodation would pose an undue hardship or create a direct threat. The interactive process becomes vital at this point. The interactive process aims to understand the barrier you face at work and develop solutions that will mitigate or remove that barrier while not burdening your employer too much. Both you and your employer need to participate in the interactive process. You may both make accommodation suggestions or explain why a particular option will not work. By working together, you will hopefully find a solution that works well for everyone.

However, some employers may deny your accommodation outright. It can be difficult in these scenarios to encourage your employer to participate in the interactive process. Requesting an accommodation for your disability is extremely personal, and any denial or pushback can feel like an attack on your identity. If you suspect malice or discrimination in the denial, it may be time to seek the help of an attorney. However, employers may deny your request because of business considerations, not due to discrimination. For example, your request may be denied because it would impose an “undue hardship” on your employer and create a “direct threat” to your coworkers.

An undue hardship is an accommodation that would create significant difficulty or expense for your employer. Things to consider when evaluating whether your requested accommodation would create an undue hardship are:

1. The nature and cost of the accommodation.
2. The overall financial resources of your employer and the facility.
3. The impact of the accommodation on the operations of your employer and the facility.

It is a very fact-specific evaluation, so an accommodation that may pose an undue hardship to one employer might not be an undue hardship to another.

A direct threat is an accommodation that creates a safety risk. The requirements to establish a direct threat are fairly strict. To argue that your requested accommodation poses a direct threat, your employer must show the following:
“1. a significant risk of substantial harm; 2. The specific risk must be identified; 3. It must be a current risk, not one that is speculative or remote; 4. The assessment of risk must be based on objective medical or other factual evidence regarding a particular individual; and 5. Even if a genuine significant risk of substantial harm exists, the employer must consider whether the risk can be eliminated or reduced below the level of a direct threat by reasonable accommodation”.

Suppose the first accommodation you suggest poses an undue hardship or direct threat, but the second accommodation you offer does not. In that case, your employer must grant the second accommodation. Throughout your employment, you should periodically meet with your employer to discuss your current accommodation(s) to ensure your needs are being met appropriately and discuss any other options that may meet your needs better.

Requesting reasonable accommodation in the workplace is a fundamental right that ensures equal opportunities for you and other employees with disabilities. Employers must create an environment where individuals can thrive and contribute to their job duties while accommodating work schedules.