Understanding Workplace Accommodation
Contributors: Malachy Bishop, PhD, CRC, Rehabilitation Counseling Program, University of Kentucky and Erica Johnson, PhD, CRC, University of Washington Department of Rehabilitation Medicine
What is an accommodation?
A work-related accommodation is any change or adjustment to a job, the work environment, or the manner in which a job is done. Accommodation enables the person with a disability to:
- apply for a job,
- perform a job, or
- enjoy equal access to benefits of the job that are available to other individuals in the workplace.
The purpose of work accommodations is to ensure that persons with disabilities have equal opportunities to participate in employment.
Most people with epilepsy do not need accommodations to do their jobs. For others, the type of accommodations needed will vary depending on the individual and the job demands.
It is helpful to conceptualize accommodations in these categories:
- a change in procedure (how the job is being done),
- modification to the work station, or
- the provision of some type of assistive equipment.
How are people with epilepsy eligible for a workplace accommodation?
- The Americans with Disabilities Act (ADA) of 1990 provides civil rights protections to individuals with disabilities similar to those provided to individuals on the basis of race, color, sex, national origin, age, and religion.
- The ADA prohibits discrimination in all employment practices, including: job application procedures, hiring, firing, advancement, compensation, training, and other terms, conditions, and privileges of employment.
- The ADA applies to recruitment, advertising, tenure, layoff, leave, fringe benefits, and all other employment-related activities.
- The ADA defines an individual with a covered disability as one who has a physical or mental impairment that substantially limits a major life activity, as well as those with a record of, or are regarded as having, such an impairment. Under the Americans with Disabilities Act Amendments Act (ADAAA) of 2008 (which became effective January 1, 2009), all persons with epilepsy should be considered to have a disability covered under the ADA, and therefore will be protected from employment discrimination.
- The ADAAA was enacted in part to address several Supreme Court decisions that greatly restricted the application of the ADA to persons with epilepsy and certain other conditions. Under these decisions, the Court had interpreted the ADA as inapplicable to conditions that are controlled with medication or other measures or which do not severely restrict major life activities (e.g. seeing, hearing, breathing, working, walking). As a result, the lower courts found that the large majority of persons with epilepsy whose conditions were controlled with medication were not protected under the law. The ADAAA effectively reversed these decisions by amending the ADA to clarify that the effects of medication or other measures will not be considered in determining whether an individual has a disability; the law also clarifies that conditions which limit bodily functions, including the neurological system, are covered disabilities, and that episodic conditions are also covered if they are substantially limiting in their active state (such as epilepsy).
- A qualified individual with a disability (that affects one or more major life areas) is one who can perform the essential functions of the job (i.e. functions that are clearly central to the job) with or without accommodation.
How are decisions made about what accommodations are needed?
It is the employee’s decision to request an accommodation from the employer. Once a request has been made, the employer and employee should consider the following:
- What are the functional limitations of the person asking for the accommodation?
- What specific job tasks are affected by those functional limitations?
- Are there workplace policies or procedures that affect the person’s ability to do the job?
- What types of equipment are used/needed to perform the job?
- The individual's physician or neurologist can play an important role in the accommodation process.
- The job description may assist medical providers in providing input.
- Accommodations may be simple, inexpensive and commonsense, such as using a day planner as a memory aid.
When can an employer make inquiries about epilepsy or require physical examinations of an employee?
The ADA sets a number of restrictions on medical inquiries and examinations, which vary depending on the stage of the employment process:
- Prior to the offer of a job – an employer may not ask whether an applicant has epilepsy or another disability, inquire about the severity of a disability, or make any inquiry that is likely to elicit information about a disability. An employer, however, may request applicants to indicate any accommodations they may need to take a pre-employment test.
- Conditional job offer – an employer who believes that an applicant satisfies the requirements of a position may offer the applicant a job conditioned on the satisfactory outcome of a medical examination or inquiry, as long as all applicants in that job class or category are required to undergo such an exam or inquiry. Such an exam or inquiry need not focus on the ability to perform job functions, but may explore any information the employer believes is relevant to a person’s ability to perform a job, including information about disability.
- After employment begins – an employer may make disability-related inquiries and require medical examinations only if they are "job-related and consistent with business necessity." This means that the employer must have a reasonable belief based on objective evidence that an employee will be unable to perform the essential functions of his or her job because of a medical condition or that the employee will pose a threat to health or safety because of a medical condition.
- Requesting an accommodation – an employer may require an applicant who requests an accommodation to substantiate that his/her condition is a disability covered under the ADA or the state’s antidiscrimination law and that the accommodation is necessary.
When might an applicant or employee want to voluntarily disclose his or her epilepsy?
If epilepsy is not affecting job performance or relationships in the workplace, it is generally inadvisable to disclose the condition. Unfortunately, discrimination remains a real possibility. The decision to disclose is a personal one that should be based on a review of the potential costs and benefits, including:
- Need for accommodation to perform the job
- Need for accommodation to avoid discipline or termination
- Need for accommodation to protect health and safety
- Whether modification may be obtained without disclosing disability
- Risk of stigma and harassment
- Risk of loss of privacy
An employee may want to approach his/her employer about developing voluntary workplace assistance. The EEOC’s guidance on epilepsy in the workplace notes that:
- Although many individuals who have seizures do not require any first aid or assistance, an employee who might need assistance may want to work with his employer to create a plan of action that includes such information as: who to contact in an emergency; warning signs of a possible seizure; how and when to provide assistance; when to call an ambulance, etc.
- The employee and employer also should discuss who in the workplace should know this information.
- Some individuals also might want to ask their employers for an opportunity to educate their co-workers about epilepsy to dispel any misperceptions or unsubstantiated fears about the condition.
What are some points to remember with regard to disclosure and accommodations?
- Remember that discrimination in employment against people with disabilities (including those with epilepsy) who can do the essential functions of the job, with or without accommodations, is illegal, under provisions of the Americans with Disabilities Act (ADA) of 1990.
- Under the ADA and state law, an employer who is a covered entity (15 or more employees under federal law, fewer under many state laws) may be required to pay for a reasonable accommodation that is necessary for a qualified individual to do the job.
- "Reasonable" is not defined, but is based on administrative regulations and case law. It depends on the size of the employer, amount of revenue and other factors. The reasonable accommodation cannot impose an undue hardship on the employer.
- The employee can request that the employer pay for or assist with the accommodation, seek funds from a state vocational rehabilitation agency to pay for it, or in some circumstances, may pay for it themselves. Depending upon company size, a tax deduction or credit can be taken by the employer for accommodation costs.
To whom do employees make a request for accommodation?
- In a large organization, the individual would usually make this request to the Human Resources department. Some large employers (e.g., Bank of America) actually have an accommodations resource center and the cost of accommodation(s) can be supported by this national center.
- In smaller organizations, the request may be made to the responsible supervisor.
- Some large employers also have a Disability Services Unit with vocational rehabilitation counselors on staff or a disability consultant on contract.
What should be included in the request for accommodation?
- In requesting a reasonable accommodation, the employee does not need to use any magic words, such as "disability" or "reasonable accommodation."
- From a practical standpoint, however, the employee may wish to use words such as "disability," "impairment," "limiting," "major life activity" and "accommodation."
- It is also preferable, but not required, that the request be provided in writing (this may help avoid disputes in the future).
- According to guidance issued by the EEOC, if an individual’s epilepsy-related limitations or the need for the accommodation is not obvious, the employer may request "reasonable documentation" showing the employee’s right to accommodation.
- Reasonable documentation means documentation from an appropriate health care professional (e.g., a physician’s note) that verifies the disability and the need for the accommodation.
- Absent usual circumstances, a request for a complete release of medical records exceeds the employer’s legitimate need for information, and is not permitted.
- According to the EEOC, documentation under the ADA is sufficient if it:
- describes the nature, severity, and duration of the employee’s impairment, the activity or activities that the impairment limits, and the extent to which the impairment limits the employee’s ability to perform the activity or activities; and
- substantiates why the requested accommodation is needed.
How do I respond to a request for accommodations?
- Though ultimately it is the employer’s decision as to which accommodation to offer, under the ADA, the employer typically must engage in a good faith effort and work in cooperation with the employee to identify a reasonable accommodation. This "interactive process" is intended to be informal and flexible so as to respond to the unique needs and abilities of individual employees.
- Among other steps, the process should involve consulting with the individual to be accommodated, identifying potential accommodations and assessing the effectiveness each would have in enabling the individual to perform the essential functions of the position (giving preference, if possible, to the individual’s requested accommodation)
- Additionally, in some instances, it may be necessary for the employer to consult qualified experts to gather the information needed to identify an appropriate reasonable accommodation, including the employee’s physician, rehabilitation specialists, and others with expert knowledge about dealing with epilepsy in the workplace.
- If a local accommodations consultant is not available, or if the employer cannot find technical assistance, no-cost consultation resources such as the Job Accommodation Network (JAN), or regional Disability and Technical Assistance Centers (DBTACs) can be utilized. Both JAN and DBTACs are sponsored by federal agencies—The Department of Labor and the National Institute on Disability and Rehabilitation Research (NIDRR) respectively.
Who can help develop a personal accommodation plan?
A number of health care professionals can help develop accommodation plans. Who is ‘best’ will vary with the patient’s needs and availability of resources such as a certified rehabilitation counselor, a speech and language pathologist familiar with neurological and cognitive rehabilitation, a rehabilitation psychologist or neuropsychologist, an assistive technologist, or other professionals recommended by your health care provider, state rehabilitation agency, or local Epilepsy Foundation affiliate.
What do accommodations cost and who has to pay for them?
- According to Job Accommodation Center research, most employers report financial benefits from providing accommodations due to a reduction in the cost of training new employees, a reduction in the cost of insurance, and an increase in worker productivity.
- Often the accommodation needed is simply a procedural change, for example, modifying a work schedule or duties such as driving.
- Costs may be covered by the employer, by the employee, by a state vocational rehabilitation agency, or by some combination thereof. Depending upon size of company, the employer may be able to take a tax deduction or credit for accommodation efforts.
- As businesses become more knowledgeable about the requirements of the Americans with Disabilities Act, many are able to make simple adjustments to the worksite with little or no advice from others.
- Recent JAN data show that 20% of accommodations cost nothing, and another 60% cost less than $500.
- A requested accommodation that might appear too costly does not have to be accepted by the employer. The employer is free to explore other less expensive alternatives if they work just as well. It is also important to remember that accommodations or adjustments must be made on a case-by-case basis.