EEOC Guidelines Raise New 'Reasonable Accommodation' Concerns

Bobbin, Dec, 1999 by Alan Rolnick

Just when you thought you understood your requirements under the Americans with Disabilities Act, the Equal Employment Opportunity Commission has issued guidelines that are inconsistent with previous interpretations.

How many of you have jobs within your organization that do not require regular attendance? Most of you would say none. The Equal Employment Opportunity Commission (EEOC), however, begs to differ with you.

One of the commission's latest releases -- the Enforcement Guidelines on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (ADA) -- advises that attendance cannot be considered an "essential function" of a job under the ADA. That's not all. The guidelines, which were issued this past March, go on to suggest that employers should be willing to offer employees extended leaves of absence and preferential reassignment to vacant positions, among other things, if they can no longer perform the essential functions of their current positions.

These new enforcement guidelines represent the EEOC's interpretation of the ADA. They do not have the force and effect of regulations, nor do they bind courts applying the ADA. Rather, they are intended to provide attorneys and employers with guidelines as to how the EEOC will apply the ADA during administrative proceedings.

Still, while the guidelines do not have the force of law, they will be reviewed and followed by EEOC investigators, who are the first to assess whether your firm may have violated the ADA.

What Is Reasonable Accommodation?

The new guidelines begin by restating the ADA's basic tenets on reasonable accommodation. The ADA requires an employer to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, unless to do so would cause undue hardship. In general, an accommodation is any change in the work environment or in the way things customarily are done that enables an individual with a disability to enjoy employment opportunities.

Attendance as an 'Essential Function' of the Job

One of the areas of conflict concerns attendance as an "essential function" of a job. Contrary to numerous court decisions, the guidelines state that attendance cannot be considered an essential function of a job. Modifying the employee's schedule and allowing the employee to work at home may both be reasonable accommodations. According to the EEOC, an employer may require attendance "only if the time during which an essential function is performed is integral to its successful completion."

Unfortunately, the EEOC failed to address the significant problems that an employer can encounter in allowing an employee to work at home, including a potential loss of teamwork, proper supervision and the employer's duty under the occupational safety and health laws to provide a safe workplace.

Few employers would disagree that attendance is an essential element of a job. Yet the issue has been heavily litigated over the years. Disability-rights advocates contend that the employee's performance of the job, not attendance, should be considered an essential job element. Many courts have taken the opposite view, however, and concluded that attendance is an essential element of most jobs, including positions ranging from customer service to teaching. One court even said that "show[ing] up for work on a regular and predictable basis" is an essential function of a flight attendant's job.

In arriving at these conclusions, courts have relied principally on the premise that an employee must be at work in order to do his or her job. One court noted that "in addition to having the skill necessary to perform the job, an employee must be able to come to work regularly."

Even though employers are permitted to have attendance policies and to enforce those policies, they may be obligated to modify the attendance policy to accommodate an employee who is disabled. Modifications can take the form of a part-time or modified work schedule, unpaid leave or the ability to work at home for certain types of jobs. These measures are not intended to waive the attendance requirement.

Leave as an Accommodation

Another area of conflict concerns employer leave policies. In addressing an employer's obligation to provide leaves as a reasonable accommodation, the EEOC guidelines have put the cart before the horse.

The guidelines fail to mention that before an employee is entitled to such an accommodation, the employee must first show that he or she is a "qualified individual with a disability" who is entitled to an accommodation. To meet this criteria, an employee must have a disability, must meet the basic qualifications necessary for the job and demonstrate that taking a leave is an accommodation that would enable him or her to perform the essential functions of the job.

The omission of this qualification background in the guidelines suggests that the EEOC is attempting to reverse the burden of proof as set forth by the ADA. The guidelines assume that disabled employees are entitled to extended leaves as accommodations unless employers can show undue hardship in granting or extending leaves. Thus, more employers may find themselves providing extended leaves as accommodations to employees who do not meet the definition of a qualified individual with a disability.