Access Network: Reasonable Accommodations & Requests
Written by Jules Patalita
Hello everyone, First and foremost, I would like to thank all of the members of the Access Network who joined us at this year’s ADA Seminar on September 13th, where we partnered with the Toledo Museum of Art to present on “Accessible Cultural Spaces.” We had an amazing turnout and it could not have happened without the support of our local community. Thank you to everyone who attended; and to those who couldn’t, we look forward to seeing you there next year.
This year’s Access Network blogs have focused on creating accessible spaces, whether that’s at events, virtual meetings, or cultural spaces. For the final blog of the year, we wanted to think about what it takes to make a space an accessible one and so we decided to look at a fundamental part of disability access: reasonable accommodation and reasonable modification. These are modifications created to programs or environments to allow equal access for those with disabilities, so these accommodation requests can vary in nature from policies to physical to communication. This newsletter will look at the two main groups for reasonable accommodations, Title I accommodations for employees and Titles II and III modifications for consumer access.
An important note to clear up at the beginning of this is the difference between “reasonable accommodation” and “reasonable modification.” Functionally, there is very little difference between the two. Reasonable accommodation is defined and outlined in Title I of the ADA while reasonable modification is found in Titles II and III. They all have similar meanings, however, and fulfill the same purpose, so we’ll be discussing both here today.
Title I and Reasonable Accommodation
Title I of the ADA requires employers to offer reasonable accommodations for their employees. This covers all employees working for government agencies, labor organizations, and any company with at least 15 staff members. Reasonable accommodation is defined by Title I as:
- Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
- Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.
These may include providing assistive technology for someone with a sensory disability, allowing a service animal to be in the office, or moving someone’s desk closer to the restroom. The term “reasonable” here means that the accommodation is feasible, enables an employee to be more productive in their role, and that it does not create an “undue hardship.” This simply means that the accommodation is not too taxing on the finances or resources of the company, and that it does not change the essential functions of the job.
Let’s take a moment and go over what an essential job function really is. In most positions, there are the tasks that make up the bulk of the work we do, or the duties that are most important. It is important to note here that it is up to a judge to give the final say on what a “essential function” is, but you as the employer should have a good idea of what this is. One example from the courts was a lawsuit against a technology company who refused to provide accommodation for a deaf individual applying for a remote IT position. The company stated that the ability to hear and communicate verbally were requirements of the position, which the courts ruled against; in this situation, the essential function of the job was being able to communicate and problem solve, but using an aide to communicate in a nonverbal manner was not an essential element of that job. According to the EEOC, some reasons that a job function could be “essential” include:
- If the position was created just to fulfill that function
- If other employees are able to take on parts of a function instead
- How specialized the function is
- If the function was listed on the job application
- The consequences of that function being dropped
- The time spent doing that function
- Input from those who held the position previously
A reasonable accommodation cannot be something that would change these essential duties or allow the employee to skip doing it. Now, a reasonable accommodation could be the elimination or transfer of job functions that are not an essential part of the position. For the receptionist, a non-essential duty might be restocking the break room with supplies, or making sure the printer has enough paper and ink in it. These are necessary tasks, but it is not necessary for the receptionist to fulfill them. A reasonable accommodation for a receptionist with a mobility-based disability may be to have a desk lower to the ground to accommodate their wheelchair, while having another coworker oversee stocking office supplies that are on shelves out of their reach. The goal is to make sure that an employee can complete their essential job functions as effectively as possible, so all accommodations should be working towards that end result.
While many reasonable accommodations should be discussed during the hiring process or initial onboarding, an employee may ask for accommodation at any time. Because of this flexibility, and due to the inherent legal requirement, it is recommended to have a written policy for the accommodation process. Having a written policy highlights your dedication to accessibility while also making sure that the procedure is documented and consistent for each case. This also creates an environment of acceptance in your company where employees will feel comfortable making requests and managers will give their due diligence to providing accommodation.
Titles II & III and Reasonable Modifications
Reasonable modifications, as mentioned earlier, are specific to Titles II and III of the ADA. Under Titles II and III, governmental entities and public places are required to grant reasonable modifications to people with disabilities. Taken from Title II of the ADA, “a public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” The language from Title III is similar but differs slightly, as it reads
“A public accommodation shall make reasonable modifications in policies, practices, or procedures, when the modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the public accommodation can demonstrate that making the modifications would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations.”
These requirements mean that government entities and private businesses must make modifications to their policies or programs to ensure that people with disabilities can take part in the services being offered to an equal degree as nondisabled individuals.
Examples of this might include:
- Letting someone bring in outside food if they have a dietary need because of a disability;
- Providing an ASL interpreter for an event;
- Giving someone a chair to sit in while waiting in a line;
- Letting someone’s care assistant enter a changing room to help try on new clothes.
As you can see, reasonable modifications here can take many different forms due to the individual nature of disability. No two disabilities impact the individual the same way, and even two people with the same disability may have totally different needs for accommodation. This is why we always suggest making sure that your policies and programs are as accessible as possible to begin with, reducing the need for accommodation requests at a later date.
It is important to note that there are times where you do not have to fulfill a request for accommodation, but only in specific situations. Certain modifications may create safety concerns, which can be denied. Another one of the few caveats to accommodation requests is if the modification would “fundamentally alter” the service provided. For example, a testing facility would not have to let someone use a calculator or receive answers from their care attendant because that would fundamentally change the nature of the test being provided. Restaurants are not required to feed a customer who cannot feed himself because that service is not one they provide for others. With that said, you are required to “demonstrate” the request would create a direct threat to others’ health or would fundamentally alter the service provided. In general, unless it is crystal clear that the request cannot be fulfilled, always take the time to look for reasonable accommodations that you can provide. In many cases, the request made could alter your service, but a different accommodation may remove the barrier without creating other issues.
Conclusion
Reasonable accommodations and reasonable modifications are an important aspect of the ADA. Without them, many Americans would be unable to participate in the workforce or our community. In the case of Title I reasonable accommodations, or Title II/III reasonable modifications, the key is to have a laid-out process set in place and clear instructions for how to fill out a request. Asking for accommodation should never be a barrier for anyone, and having the process established in advance will make it easier for you and your staff to fulfill the request in a short timeframe. Remember that you do not have to create modifications that would alter the essential functions of an employee’s position, or a service provided, but the number of times you will not fulfill these requests will be far lower than the times where your accommodation will allow someone to fully appreciate what your business offers.
