By Ruder Ware Alumni
May 20, 2014
We are seeing more and more requests from an applicant to have some type of accommodation for the individual to be considered for a vacant position. The Equal Employment Opportunity Commission recently issued an informal letter to a public employer outlining the duties of an employer to make an accommodation for an applicant that suffers from a disability. Legal Counsel for the EEOC made it clear that the requirements of Section 501 of the Rehabilitation Act of 1973 required a public agency to provide reasonable accommodation to qualified applicants for a vacant position, unless to do so would cause an undue hardship. The same requirement would exist under the Americans with Disabilities Act that is applicable to all private employers.
In discussing what type of accommodation must be made to an applicant, Legal Counsel said that an “accommodation is a change in the work environment or in the way things are customarily done, that would enable an individual with a disability to enjoy equal employment opportunities.” Legal Counsel went on to say that “the accommodation is “reasonable” if it “seems reasonable on its face,” i.e., if it appears to be “feasible” or “plausible.” An accommodation also must be effective in meeting the needs of an individual so for a job applicant, the accommodation should enable the applicant to have an equal opportunity to participate in the application process and be considered for a job.
EEOC also stated that an employer must engage in an informal process (often known as the “interactive process”) to clarify what the individual may need, and to identify the appropriate reasonable accommodation for the applicant to participate in the hiring process. This would necessitate the employer asking individual, relevant questions that would enable the employer to make an informed decision about any requests from the applicant for an accommodation.
An employer may also require that there be documentation provided by the applicant to document or identify the applicant’s disability and the functional limitations that the applicant suffers from. The employer may require that this documentation be from an appropriate health care or rehabilitation professional. This would include doctors (including psychiatrists), psychologists, nurses, physical therapists, occupational therapists, speech therapists, vocational rehabilitation specialists, and licensed mental health professionals.
An employer does not have to provide all accommodations that may be requested by an applicant. The employer does not have to provide an accommodation that would impose an “undue hardship” on the operation of the employer. It is important to understand that the undue hardship determination must be based on an individualized assessment of current circumstances that show whether a specific reasonable accommodation would cause significant difficulty or expense for the employer.
Employers are experiencing more requests for accommodation from applicants seeking employment. In these cases, the employer must participate in an interactive process and address whether or not an accommodation is needed and can be provided for the applicant to be given an equal opportunity to be considered for a vacant position. Employers must be careful to do an interactive process by meeting with the individual and asking for information that may be needed to assess whether or not an accommodation is necessary and would actually work.
The content in the following blog posts is based upon the state of the law at the time of its original publication. As legal developments change quickly, the content in these blog posts may not remain accurate as laws change over time. None of the information contained in these publications is intended as legal advice or opinion relative to specific matters, facts, situations, or issues. You should not act upon the information in these blog posts without discussing your specific situation with legal counsel.
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