Forever Accommodation Episode 3 Draft(1) [MUSIC PLAYING] JOE ZESSKI: Hello, welcome to "Ask about the ADA," the podcast where we answer your questions about the Americans with Disabilities Act and how it might apply to your everyday life. I'm Joe Zesski, the Program Manager of the Northeast ADA Center. And on today's edition of "Ask about the ADA," we're going to talk about a topic that we often get asked about in one form or another through our technical assistance line. You can reach that line if you live in New York, New Jersey, Puerto Rico, or the US Virgin Islands, by dialing 1-800-949-4232. And if you live outside of that area, you can reach your local ADA Center in the US by dialing that same number. That being said, let's get to our question. [MUSIC PLAYING] I am legally blind with a progressive condition. Since October of 2021, I have been working from home as a reasonable accommodation. Recently, my supervisor spoke to me and told me that I would have to begin working in the office three days a week. Is this legal? And do they have to inform me in writing? Let's begin to answer that with the second question first. In terms of the ADA, it's nowhere stated that an employer has to inform an employee in written communication of a change in a reasonable accommodation. A common misconception is that once an accommodation is reached, then that is sort of permanent and always final. That's actually not the case. In fact, the reasonable accommodation process is an interactive process and typically is ongoing. Accommodations are not guaranteed forever. And there are times when either the employer or the employee might need to reexamine the accommodations that have been agreed to. Accommodations are individualized and they are temporary. Or, they can be continuous. It really depends on a case-by-case basis. But it's important to keep in mind that even a long term accommodation is not necessarily permanent. There are various reasons why an accommodation might need to be changed, or removed, or altered. Let's look at some of the examples. Well, first of all, a person's disability can change. But just think about it in general terms. If someone has a progressive condition that is affecting their vision, well, what the person is able to perceive or do in terms of visual access may be very different six months later, or a year later, or two years later. This emailer said that her condition was progressive. Now, that probably doesn't have any bearing on what we're discussing in this particular scenario. But it's important to keep in mind there are reasons to reexamine an accommodation that has been given. Another reason why an accommodation might need to be reexamined is that it now creates an undue hardship for an employer. Under Title I of the ADA, an employer does not have to provide a reasonable accommodation that would cause an undue hardship. Undue hardship meaning significant difficulty or expense. It's possible that in this instance the accommodation of this person working remotely has created some sort of new undue hardship that wasn't there before. This might be related to staffing issues, number of people available in a given position or a given role. There are different possibilities. It's also possible that there might be an alternative accommodation that would better suit the employer's business needs. And you have to remember that ultimately under Title I of the ADA, the employer gets to decide what the accommodation will be as long as it is effective. And that is a key to keep in mind. When an employer wants to look at changing an accommodation, they should really engage the employee in a conversation in a dialogue to look at what other accommodations would be effective and meet whatever needs or concerns the employer might have. But again, it needs and should be a conversation. The employer should provide a reason why the accommodation is going to be rescinded, taken away, or changed. In this instance, it may be that the employer feels that the essential job functions of this worker require her to be in the office. We don't know for certain. We don't have enough information based on the question provided. But that's one possibility that we would have to consider. But whatever the case may be, the employer should engage with the employee to find an accommodation that would help the person to be successful and to do those essential job functions. So in this particular technical assistance case, the employer does not have to provide legal written notice and changing an accommodation in itself is not a violation of the ADA. Again, there's much more complexity and details around that. But merely changing an accommodation is not illegal. I hope this was helpful to your understanding of the ADA. And if you have questions about the ADA or how it might apply to you, please feel free to reach us at the Northeast ADA Center by going to our website northeastada.org, by reaching us by telephone, or finding us on social media. Just look for @northeastada. Thank you, as always, to our student producer, Will Warren, for helping to create and edit the episode. Thank you as well to Peter Quinn of the Yang-Tan Institute's media team for doing final edits and polishing. And thank you all for being a part of our conversation and listening to our podcast. [MUSIC PLAYING]
