EEOC Cautions Against Using Sample Policy, Forms for ADA Accommodation Requests

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By Lydell C. Bridgeford  

April 28 --The Equal Employment Opportunity Commission released an informal discussion letter that may prompt some employers to reexamine their own policies and forms related to reasonable accommodation requests to ensure the documents comply with the Americans with Disabilities Act.

The five-page advisory letter, signed Feb. 25 by EEOC Legal Counsel Peggy Mastroianni and posted on the agency's website April 22, is a response to an inquiry from a “member of the public” who wrote to EEOC Chair Jacqueline A. Berrien about the use of a sample reasonable accommodation policy and accompanying sample forms.

“Requests for reasonable accommodations must be handled on an individualized basis,” Mastroianni wrote. Under the statute, as amended by the ADA Amendments Act of 2008, the interactive process must consider, “among other things, the nature of an employee's disability, the employee's job, and the work environment,” the letter said. “[I]t is difficult to develop a policy and related forms that can address all variables.”

Fixed Policy, Model Forms Can Increase Legal Risks

In the informal discussion letter, the EEOC explains why particular statements and questions in the sample disability accommodation policy and related forms may violate the ADAAA.

The documents under scrutiny originated from a state agency's website, according to the EEOC's letter. The inquirer's letter told the EEOC that “a government official stated that the sample policy” was removed from the website and “was never used as official accommodation policy,” but was intended for “training purposes,” Mastroianni said. Copies of the documents were not included with the letter that was released to the public.

Despite the disclaimer that the sample policy and forms were intended for “informational, educational, and/or training purposes only,” the EEOC found in reviewing the documents that certain wording raised concerns when complying with the ADAAA.

Reasonable accommodation under the law “continues to develop, making it risky to conclude, as the policy does, that certain things never (or almost never) have to be provided as reasonable accommodations,” the EEOC said.

Telecommuting Can Be Considered

On telecommuting, the advisory letter criticized the language in the sample policy stating “that working from home is 'generally' not a reasonable accommodation 'except in extraordinary circumstances.' ”

The EEOC recognizes that, although “some courts have found a legal obligation to provide telework as a reasonable accommodation to be limited, the law is far from settled,” Mastroianni asserted. “Thus, the suggestion that working from home is not required except in extraordinary circumstances may lead an employer to violate the ADA. Of course, telework is not appropriate for all jobs,” she added.

The advisory letter was posted on EEOC's website the same day the U.S. Court of Appeals for the Sixth Circuit held that the commission raised a triable issue on whether working from home was a reasonable accommodation for an employee with irritable bowel syndrome, given that current technology would allow her to perform the essential functions of her job (EEOC v. Ford Motor Co., 2014 BL 111020, 6th Cir., No. 12-2484, 4/22/14; 32 HRR 427, 4/28/14).

Sample Language on Leave Unclear

The informal discussion letter indicated that the sample policy in question “states that an employer is not required to provide certain accommodations. The policy is correct that certain actions, such as eliminating essential functions, are not required,” Mastroianni said.

“However, the sample policy states that an employer is not required to permit 'unscheduled (or erratic, unpredictable, intermittent) or excessive absenteeism or tardiness as a reasonable accommodation.' This formulation could lead to the inappropriate denial of a reasonable accommodation,” the letter stated.

In reviewing the sample policy, Mastroianni noted that it failed to “distinguish between unscheduled and excessive absenteeism,” adding that “[i]t is highly unlikely that an employer could deny unscheduled leave in all cases.”

Mitigating Measures Are Not Inflexible

Mastroianni also scrutinized the sample policy's position on mitigating measures: “If an employee can control an impairment with medication or assistive devices and thereby perform essential job duties, no reasonable accommodation would normally be needed or reasonable.”

“[P]eople with many types of disabilities and who use many different kinds of mitigating measures still may require reasonable accommodation because the mitigating measure either does not eliminate all disability-related limitations or because it imposes limitations,” according to Mastroianni.

Letter Provides Advice on Drafting Forms

In the informal discussion letter, Mastroianni recommended that employers who use forms to collect information on reasonable accommodation requests should ask questions “in plain English” and include only a “few questions that will help to determine whether the requestor has a disability and needs a reasonable accommodation.”

“[T]he longer the form, the higher the likelihood that many requestors (or their health care professionals) will be asked questions that violate the ADA and do not serve the employer's interest in obtaining relevant information to make an informed decision about the request for reasonable accommodation,” Mastroianni said.

The forms also should provide the reasons as to why the employee is being asked the questions. Although the ADA does not require an employer to explain why a particular question is being asked, it “can encourage the individual's cooperation in providing information,” the letter said.

On a request for reasonable accommodation, “a form could ask how an accommodation would assist the individual to apply for a job, perform the job's essential functions, or enjoy equal access to the benefits and privileges of employment,” the letter said.

“Employers should consider the purpose behind each question on a form, i.e., whether the answer will provide information concerning the existence of a disability, the need for a reasonable accommodation, or both,” Mastroianni said.

According to the EEOC, each advisory letter represents “an informal discussion on the noted issue and does not constitute an official opinion” of the commission.

 

To contact the reporter on this story: Lydell C. Bridgeford in Washington at lbridgeford@bna.com

To contact the editor responsible for this story: Heather Bodell at hbodell@bna.com


Text of the advisory letter is available at http://www.eeoc.gov/eeoc/foia/letters/2014/ada_reasonable_accommodation_02_25.html.