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1. What constitutes a “disability”?

Under federal law, a disability is a physical or mental impairment that substantially limits one or more major life activities (or being regarded as or having a history of being disabled). Under state law, a disability is defined as having a physical or mental impairment that makes achievement unusually difficult or limits the capacity to work (and, like federal law, being regarding as having such an impairment or having a record of such an impairment). For purposes of this discussion, being “regarded as” or having a history is not relevant because a person has to actually be disabled in order to be entitled to accommodations.

2. What is an “accommodation”?

A reasonable accommodation is any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions.

3. How do I get an accommodation?

An employee has to let her employer know that she has a disability in order for the employer to be obligated to accommodate her. An employer can’t accommodate a disability it doesn’t know about. When the employee informs the employer of her disability and the constraints and restrictions that it causes, she should support her request for accommodations with medical documentation from her doctor or other provider. See our blog post “REQUESTING REASONABLE ACCOMMODATIONS: A CLOSER LOOK AT THE INTERACTIVE PROCESS.”

4. Are there situations in which employers don’t have to accommodate my disability?

Employers are not required to employ a person if her disability makes her unable to adequately undertake the job-related responsibilities of that individual’s employment. In other words, a person has to be qualified to do the job, either without reasonable accommodation or with reasonable accommodation, if an accommodation (or more than one) will allow her to undertake the job-related responsibilities. An employee must also be able to perform the job safely for herself, her co-workers, and the public. An employer has to evaluate each person’s ability to perform job-related responsibilities and perform them safely, however. With some exceptions, an employer can’t base its decision on a general rule that a person with a particular type of disability cannot perform the job duties or perform them safely.

Employers also do not have to provide a particular accommodation if it would impose an undue hardship on the employer. “Undue hardship” is evaluated on a case-by-case basis. The analysis includes:

• 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;

• and the impact of the accommodation on the operation of the facility.

What may be reasonable for a multinational corporation may not be reasonable for a mom-and-pop grocery store.

5. What kinds of accommodations are reasonable?

The kinds of accommodations that can be effective and reasonable are as varied as there are kinds of disabilities. Sometimes reasonable accommodations are obvious, such as installing a handicapped-accessible bathroom for a mobility-impaired employee. Sometimes the effective accommodation can be provided at little or no cost. Some kinds of common accommodations are:

• Job restructuring that re-assigns marginal job duties, or changes how those job duties are performed;

• Leaves of absence that are necessitated by the disability, such as for recovery periods or periods of flair-up of a disability. See our blog post “CAN I TAKE LEAVE TO ACCOMMODATE MY DISABILITY?”;

• Modified work schedule or part-time schedule that involves 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;

• Modified workplace policies that alter policies for the disabled employee such as a rule against eating at one’s desk, or leave or attendance policies;

• Job reassignment to a vacant position for which the employee is qualified. See our blog post “EMPLOYERS MAY BE REQUIRED TO REASSIGN DISABLED EMPLOYEES TO VACANT POSITIONS. THE SEVENTH CIRCUIT “CORRECTS [A] CONTINUING ERROR” IN ITS DISABILITY ACCOMMODATION JURISPRUDENCE.”

An excellent resource for both employees and employers is the Job Accommodation Network (JAN) at http://askjan.org/index.html. The JAN has a page that allows people to get ideas about what may be reasonable and appropriate accommodations for their particular disability at “Accommodation Information by Disability: A to Z” at http://askjan.org/media/atoz.htm. The ideas that are suggested as a form of accommodation for a particular disability may not be appropriate for every person with that disability, but JAN is a good place to look for suggestions that may not have occurred to either the employee or the employer. For example, in relation to the disability of multiple sclerosis, the website gives the following suggestions:

Activities of Daily Living:

• Allow use of a personal attendant at work
• Allow use of a service animal at work
• Make sure the facility is accessible
• Move workstation closer to the restroom
• Allow longer breaks
• Refer to appropriate community services

Cognitive Impairment:

• Provide written job instructions when possible
• Prioritize job assignments
• Allow flexible work hours
• Allow periodic rest breaks to reorient
• Provide memory aids, such as schedulers or organizers
• Minimize distractions and provide more structure
• Allow a self-paced workload
• Reduce job stress

Fatigue/Weakness:

• Reduce or eliminate physical exertion and workplace stress
• Schedule periodic rest breaks away from the workstation
• Allow a flexible work schedule and flexible use of leave time and work from home
• Implement ergonomic workstation design
• Provide a scooter or other mobility aid if walking cannot be reduced

Fine Motor Impairment:

• Implement ergonomic workstation design
• Provide alternative computer access
• Provide alternative telephone access
• Provide arm supports
• Provide writing and grip aids
• Provide a page turner and a book holder
• Provide a note taker

Gross Motor Impairment:
Work-site Accessibility:

• Provide parking close to the work-site
• Provide an accessible entrance
• Install automatic door openers
• Provide an accessible restroom and break room
• Provide an accessible route of travel to other work areas used by the employee

Workstation Accessibility:

• Adjust desk height if wheelchair or scooter is used
• Make sure materials and equipment are within reach range
• Move workstation close to other work areas, office equipment, and break rooms

Heat Sensitivity:

• Reduce work-site temperature
• Use cool vest or other cooling clothing
• Use fan/air-conditioner at the workstation
• Allow flexible scheduling and flexible use of leave time
• Allow work from home during hot weather

Speech Impairment:

• Provide speech amplification, speech enhancement, or other communication device
• Use written communication, such as email or fax
• Transfer to a position that does not require a lot of communication
• Allow periodic rest breaks

Vision Impairment:

• Magnify written material using hand/stand/optical magnifiers
• Provide large print material or screen reading software
• Control glare by adding a glare screen to the computer
• Install proper office lighting
• Allow frequent rest breaks

If you or someone you know has questions about reasonable accommodations or other employment matters, contact Hawks Quindel, S.C. to schedule a consultation.

Summer Murshid

Shareholder at Hawks Quindel, S.C.
Attorney Murshid’s practice focuses largely on federal class action wage litigation, which means she spends the lion’s share of her waking moments making sure she’s doing everything she can to ensure every employer in the great State of Wisconsin pays every employee fairly and legally. Summer devotes the rest of her law practice to litigating on behalf of individual clients who need assistance with a wide range of employment issues.