Under the Americans with Disabilities Act, employees with disabilities are entitled to reasonable accommodations in the workplace— but what happens when an accommodation is unreasonable? Not every request is approved, so this edition of Ask About the ADA covers some questions about what makes an accommodation reasonable.
NortheastADA.org
Under the Americans with Disabilities Act, employees with disabilities are entitled to reasonable accommodations in the workplace— but what happens when an accommodation is unreasonable? Not every request is approved, so this edition of Ask About the ADA covers some questions about what makes an accommodation reasonable.
NortheastADA.org
Hello, welcome to Ask About the ADA, the podcast where we answer your questions about the Americans with Disabilities Act and how it applies to everyday life.
[MUSIC PLAYING]
On this edition of the podcast, we're going to go back to a webinar that the Northeast ADA hosted in December 2021. The webinar was called What's The Question. And it featured frequently asked questions received here at the Northeast ADA Center. We came up with these questions both through our internal review and research as well as soliciting questions from the public that they would like to have answered.
Today we have two questions that were submitted to us from the public. The first has to deal with reasonable accommodations that may or may not be approved. And the second has to deal with the use of audio recordings that are needed because of a disability.
You'll hear my voice, Joe Zesski, answering the questions. However, the entire technical assistance team here at the Northeast ADA Center, Christopher Sweet and Jennifer Perry, also participated and answered questions from the public. So sit back and listen and I hope you enjoy.
[MUSIC PLAYING]
Here is the first question. I have a traumatic brain injury. And among my collection of symptoms are anterograde amnesia and aphasia. As part of my toolkit, I use my phone and other devices to record information that could be important to me. There are three questions under that.
What is the limitation to this right? How far is too far? Am I justified in recording if I feel threatened or if my rights are being infringed upon? And, finally, how may I use those recordings? What, if any, are the limitations for their use?
Now, let's look at the answer to that. And, unfortunately, some of this really goes beyond what the ADA specifies and, really, goes beyond what the ADA centers can answer. Again, we don't provide legal advice. And what is being asked here, to some degree, goes beyond what the ADA covers and addresses. So it's really out of our purview.
There's a couple of key things, though, that you can definitely keep in mind. First, since this person, as they shared, has a traumatic brain injury, has multiple conditions that certainly can qualify as a disability, using a device, like a cell phone, or PDA, or other electronic device to record conversations for informational purposes, in other words, to keep track of information. If there's difficulty with memory or other functions, certainly that could be a form of a modification allowed by either a State and local government entity or by a public accommodation under Title III.
And, perhaps, as well, in an employment situation, where you have an employer who may need to accommodate an individual so they can do their essential job function. This would come under, generally speaking, effective communication as why this should be permitted by these different organizations. However, a lot of these other questions that the person raised, such as what are the limitations to this right? Again, under the ADA, it's in order to provide effective communication. And that's the intended purpose of allowing the recording.
So answering how far is too far is a little bit beyond what we can really say. And certainly, if someone does feel threatened or feels that they are being discriminated against, then they definitely have a right to file a complaint. But whether or to what extent recording could be used as part of that process is a little bit beyond what we do here and can provide information on here at the Northeast ADA Center. So that's something to keep in mind.
So this is one of those situations where we would suggest and provide the basic framework, like I just did, in terms of effective communication, but, in terms of finding out some of the other specifics, in terms of the use of the recording beyond what the ADA specifies, that is a little bit beyond what we can do. And so we would recommend seeking legal advice in that type of a situation.
[MUSIC PLAYING]
This second question is more of a statement than exactly a question. It says, give some examples of reasonable accommodation requests that have not been approved and explanations for why. I will share that this particular question I believe came after a webinar we recently did on mental health conditions in the workplace. And so the accommodations here refer to employment ones. And so that's what I'm going to address in our answer.
Be aware, though, that the term accommodation typically does refer to workplace accommodations, however a lot of times, you'll find that people use the term accommodation as a catchall for modification, or auxiliary aid or service, that are provided to a person by either a Title II or III entity, that's state and local government or the public accommodation. So be aware that the term accommodation can be a little bit fuzzy in terms of how people use it, but in this context, I think it refers to the more particular definition as used in the ADA in terms of a reasonable accommodation in the workplace.
So we can look at what exactly that is. A reasonable accommodation, quite simply, is an adjustment. It's a change in the work environment that lets a person who has a disability be able to do the essential parts of their job, the essential job functions. And so accommodations can take on a lot of different forms. It can be physical changes in the environment, providing pieces of equipment. it could be doing a change in policy. There are many different forms of reasonable accommodations.
Each time an issue regarding reasonable accommodation comes up, it needs to be looked at on a case-by-case basis. Everyone's disability will impact them differently. And everyone who has a job responsibility, it's going to be a little bit different what the essential functions of a job are. So every case needs to be looked at singularly.
One other thing to also keep in mind is that, as a person engages a person with a disability, engages in the reasonable accommodation process, it's a dialogue. It's the conversation between an employer and an employee or applicant with a disability. Ultimately, though, the employer gets to decide what accommodation will be provided. However, it must be effective.
In other words, it must allow the person to do the essential job functions. Now, an employer doesn't have to provide a reasonable accommodation that would pose an undue hardship. Undue hardship meaning significant difficulty or expense for an employer. And so that is often why an employer may deny a particular type of accommodation or a specific accommodation request, I should say.
Then we have a few examples here that I've adapted from guidance from the Equal Employment Opportunity Commission, the federal agency that enforces Title I of the ADA. The first is an example of an experienced chef who works at a top restaurant. Let's say that person has requested leave to treat a disability condition. Perhaps there's an injury or perhaps someone has a neurological condition that they've been recently diagnosed with. Perhaps someone is dealing with a psychiatric condition.
They request leave. Certainly a typical form of reasonable accommodation. However, in this instance, the person can't provide a estimate or a fixed return date to the restaurant. Now, in this situation, because it's an experienced chef working at a restaurant described as a top restaurant, meaning that it's something where it's more specialized, it's not your local fast food joint, whatever that may be.
There's conditions that make it more difficult for an employer to accommodate this request, to have that uncertainty. So, therefore, this would be denying this request probably would be permissible by the employer, because of the uncertainty and because of the specific circumstances around the type of work and the staff who are able to do this very particular, specialized kind of work.
The second example on this is one of a usher who works at a movie theater. The person happens to be low vision and they request that the lights never be turned down lower than a specific level. Again, because of the nature of the work this person does, working in a theater, where bringing down the lights completely is, at points, going to be necessary, trying to accommodate them, likely, would pose an undue hardship. And so for that reason, denying that request probably would be permissible.
The third and final example is a crane operator who was part of a larger, four-person team. If that one individual crane operator requests to adjust their schedule, say by an hour, that impacts the other three coworkers. And you need the four coworkers of the team in order to operate the crane.
It may well not be possible to adjust the work schedule that way, because it would impact other workers beyond just the individual, which, in and of itself, is not always an issue. But in this circumstance, it likely would be, because it's a very specialized piece of equipment, likely that has to operate within very specific hours on a works site. And so for that operation, it may well be an undue hardship.
[MUSIC PLAYING]
That's it for today's podcast. I hope you found the information interesting and, hopefully, useful. If you have questions about the Americans with Disabilities Act that you would like to have answered, please feel free to reach us here at the Northeast ADA Center. You can call us 1-800-949-4232.
You can reach us, if you live in New York, New Jersey, Puerto Rico, or the US Virgin Islands. However, no matter where you live, you can visit us on the web at northeastada.org. Submit a question through our website. And of course, you can always follow us on social media by looking for Northeast ADA on Facebook, Twitter, Instagram, and LinkedIn.
As always, I'd like to thank Grace Fairchild, our editor and producer for the podcast. Thank you, as well, to Peter Quinn, who also does some additional editing. Peter is with the YTI media team. And thank you listeners for tuning in and being a part of the conversation.
[MUSIC PLAYING]