• EEOC Provides Guidance on Reasonable Accommodation Policy and Forms
  • June 23, 2014
  • Law Firm: Baker Sterchi Cowden Rice L.L.C. - Kansas City Office
  • In a recent informal discussion letter, the Equal Employment Opportunity Commission’s legal counsel reviewed an employer’s reasonable accommodation policy, and questionnaires that an employee and a health care provider (HCP) were asked to complete. The EEOC counsel noted concerns with the documents and offered suggestions that employers should take into consideration in preparing such documents.

    With regard to the policy, the EEOC counsel took issue with the fact that the policy stated that certain things (e.g. unscheduled and excessive leave, working from home) would not or would only rarely be provided as reasonable accommodations, because the EEOC counsel noted that each accommodation situation is very different and that the law continues to develop in this area. Rather, the EEOC counsel noted that the analysis must be on whether the accommodation poses an undue hardship.

    As for the employee questionnaire, the EEOC counsel found a number of problems, including the following:

    • questions that ask for more information than permitted by the ADA
    • questions that require employees to address the need for accommodations they have not requested
    • focusing on certain accommodations to the exclusion of others
    • questions that are confusing or irrelevant
    • failing to explain the reason for asking the questions

    With regard to the HCP questionnaire, the EEOC counsel noted that many of the same problematic questions from the employee questionnaire also appear on this form. The EEOC counsel had further concerns with the wording of several questions, which gave the doctor limited choices in answering. Other questions were found to be ambiguous, which could lead to an inappropriate denial of accommodation. In addition, the form suggested that an employee must ultimately be able to work without any restrictions, contrary to the ADA, which provides that the employee must be able to perform the essential functions of the job, with or without reasonable accommodation.

    Practical Pointers: The EEOC counsel stated that, “The wide range of disabilities, employers, jobs, workplaces, and reasonable accommodations makes it exceedingly difficult to develop a form with questions that almost everyone requesting accommodation would need to answer.” But, to the extent that an employer wanted to prepare such a form, the EEOC counsel also offered some suggestions:

    • The employer should ask, in plain English, the few questions that will help to determine if a disability exists (but only if non-obvious) and reasonable accommodation is needed.
    • With regard to whether a disability exists, a form could ask:
      • “information about the nature of the requestor’s impairment and its expected duration;”
      • “the kind of activities, including major bodily functions, that the impairment affects;” and
      • “the way in which the activities are affected.”
    • The form could also ask about “the use of mitigating measures and the extent to which they eliminate or control the impact of the medical condition.”
    • The form could give examples to explain legal terms, such as:
      • “major bodily functions” or other “major life activities” (e.g. normal cell growth; endocrine, neurological, or brain function; standing, lifting; and concentrating).
      • “mitigating measures” (e.g. medication, physical therapy, assistive devices, and behavioral modifications).
    • With regard to the need for reasonable accommodation, the 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.”
    • Each question on the form should seek information concerning the existence of a disability, the need for reasonable accommodation, or both. If it does not, then it should be carefully reviewed to assess if it is truly needed to enable the employer to determine the need for reasonable accommodation.