ADA Accommodations: What Employers Must Do Under Title I

Which Employers Title I Covers

Title I applies to an employer with 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year (42 U.S.C. 12111(5)). It also applies to employment agencies, labor organizations, and joint labor-management committees. State and local government employers are covered. The federal government is excluded from Title I and is covered by Section 501 of the Rehabilitation Act instead (29 U.S.C. 791).

Two practical points:

• The count is 15 or more, not "more than 15," and it looks at the preceding calendar year as well as the current one. An employer that shrank to 12 people this spring may still be covered.
• Many state disability laws reach smaller employers and some define disability more broadly than federal law. Check the threshold in each state where you have employees. A company with eight employees is outside Title I and may still owe accommodations under state law.

Who Is Protected: Disability and "Qualified Individual"

Protection turns on two questions, and employers tend to spend too much time on the first.

Does the person have a disability?

The ADA defines disability three ways: a physical or mental impairment that substantially limits one or more major life activities; a record of such an impairment; or being regarded as having an impairment. Since the ADA Amendments Act of 2008, the definition is construed broadly in favor of coverage. Under 29 CFR 1630.2(j), the benefit of mitigating measures such as medication is ignored (ordinary eyeglasses and contact lenses are the exception), and a condition that is episodic or in remission counts if it would be substantially limiting when active. The regulations say the main question should be whether the employer met its obligations, not whether the person meets the definition.

One distinction matters for accommodations: a person covered only under the "regarded as" prong is protected from discrimination but is not entitled to a reasonable accommodation (29 CFR 1630.2(o)(4) and 1630.9(e)). See who is protected under the ADA for the definition in more depth, and our guide to mental health accommodations for anxiety and depression for conditions that are not visible.

Is the person qualified?

A qualified individual is someone who meets the skill, experience, education, and other job-related requirements of the position and who can perform its essential functions with or without reasonable accommodation (42 U.S.C. 12111(8); 29 CFR 1630.2(m)). Essential functions are the fundamental duties of the job, not the marginal ones. The statute gives weight to the employer’s judgment, and a written job description prepared before advertising or interviewing is evidence of what is essential. That is the reason to keep job descriptions current: see essential functions and job descriptions.

The ADA does not require hiring someone who lacks the qualifications for the job. It prohibits rejecting a qualified person because of the disability or the need to accommodate it (29 CFR 1630.9(b)).

What Triggers the Duty to Accommodate

The duty is to accommodate the known physical or mental limitations of a qualified applicant or employee with a disability (29 CFR 1630.9(a)). In practice, the employer learns of the limitation because someone asks. EEOC’s enforcement guidance on reasonable accommodation sets a low bar for what counts as asking:

• The person may use plain English and does not have to mention the ADA or say "reasonable accommodation." "I’m having trouble getting to work at my scheduled starting time because of medical treatments I’m undergoing" is a request.
• The request does not have to be in writing. An employer may ask the person to complete a form afterward but cannot ignore the initial request.
• A family member, health professional, or other representative may make the request for the individual.
• A request for a change that is not tied to a medical condition (a new chair because the old one is uncomfortable) is not an accommodation request.

Generally, the employee must raise the need. EEOC says an employer should start the conversation without being asked when it knows the employee has a disability, knows or has reason to know the employee is having workplace problems because of it, and knows or has reason to know the disability prevents the employee from asking.

Supervisors hear requests first, so they need to know what a request sounds like and where to send it. Our article on ADA training for managers covers what to teach them.

The Interactive Process in Brief

Once a request is made, the regulations call for an informal, interactive process to identify the precise limitations and the accommodations that could overcome them (29 CFR 1630.2(o)(3)). EEOC’s interpretive guidance to the regulation describes four steps:

1. Analyze the job and determine its purpose and essential functions.
2. Consult with the individual to learn the precise job-related limitations and how they could be overcome.
3. Identify potential accommodations with the individual and assess how effective each would be.
4. Consider the individual’s preference, then select and implement the accommodation that is most appropriate for both the employee and the employer.

Three rules govern the outcome. The employer should respond expeditiously, because unnecessary delay can itself violate the ADA. The employee’s preference gets primary consideration, but where more than one accommodation would be effective, the employer may choose among them, including the less expensive one. And an employee who rejects an accommodation that is necessary to perform the essential functions, and cannot perform them as a result, is no longer considered qualified (29 CFR 1630.9(d)).

The step-by-step version is in our ADA interactive process guide, and the paperwork is in ADA accommodation request form and documentation.

Categories of ADA Accommodations, With Examples

A reasonable accommodation is a modification or adjustment to the application process, to the work environment or the way the job is customarily performed, or to access to the benefits and privileges of employment (29 CFR 1630.2(o)(1)). The types the regulation lists fall into these groups.

EEOC calls reassignment the accommodation of last resort: it comes into play only when no accommodation would keep the employee in the current job or all of them would be an undue hardship.

A note on parking, which the earlier version of this article treated as a general employer duty. The number and dimensions of accessible spaces in a lot are set by the ADA design standards explained at ADA.gov, not by Title I. Under Title I, a reserved space for an employee whose disability makes the walk a barrier is an accommodation question like any other.

What the ADA Does Not Require

EEOC’s guidance is also clear about the limits. An employer does not have to:

• Remove an essential function of the job.
• Lower production standards that are applied uniformly, although it may have to accommodate the employee so that he or she can meet them.
• Provide personal-use items needed on and off the job, such as eyeglasses, hearing aids, or a wheelchair.
• Create a new position or bump another employee to open a vacancy.
• Excuse a violation of a uniformly applied conduct rule that is job-related and consistent with business necessity.

Blanket policies are a frequent source of trouble. A rule that an employee must be "100 percent healed" before returning, or a leave policy that ends employment automatically at a fixed number of weeks, may have to yield when an individual needs an exception as an accommodation. See "100% healed" and maximum-leave policies.

Undue Hardship in Brief

An employer may decline an accommodation that would impose an undue hardship, which the regulations define as significant difficulty or expense in light of specific factors: the nature and net cost of the accommodation (after tax credits, deductions, and outside funding), the financial resources of the facility and of the employer as a whole, the size and structure of the operation, and the impact on the facility’s operations, including on other employees’ ability to do their jobs (29 CFR 1630.2(p)).

EEOC states that undue hardship is not decided by a cost-benefit analysis, and that it cannot rest on coworkers’ or customers’ fears or on the effect on morale, although an accommodation that is unduly disruptive to other employees’ ability to work may qualify. It is decided case by case, and if one accommodation is a hardship, the employer still has to consider whether another would work. The full analysis, with the evidence to gather, is in undue hardship explained.

Direct Threat in Brief

An employer may require that an individual not pose a direct threat, meaning a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation (29 CFR 1630.2(r)). The decision must be an individualized assessment of the person’s present ability to do the job safely, based on reasonable medical judgment that relies on current medical knowledge or the best available objective evidence. The four factors are the duration of the risk, the nature and severity of the potential harm, the likelihood it will occur, and its imminence.

A diagnosis alone never satisfies that test, and neither does a manager’s discomfort. See the direct threat standard before excluding anyone on safety grounds.

Medical Information and Confidentiality

The ADA limits what an employer may ask and controls what happens to the answers.

What you may ask

Before a job offer, no disability-related questions or medical exams; you may ask whether the applicant can perform job-related functions. After a conditional offer, exams are allowed if required of all entering employees in the job category. During employment, a medical exam or disability-related inquiry must be job-related and consistent with business necessity (42 U.S.C. 12112(d); 29 CFR 1630.13 and 1630.14).

Documentation for an accommodation

When the disability or the need for accommodation is not obvious, EEOC permits the employer to ask for reasonable documentation: enough to establish that the person has an ADA disability and needs the accommodation, and no more. In most situations, that rules out asking for complete medical records. When both the disability and the need are obvious, or the employee has already supplied enough, the employer may not ask at all. Details and sample wording are in medical information and inquiries under the ADA.

Confidentiality

Medical information must be collected and maintained on separate forms, in separate medical files, and treated as a confidential medical record. The regulation allows three disclosures: to supervisors and managers about necessary work restrictions and accommodations, to first aid and safety personnel when the disability might require emergency treatment, and to government officials investigating compliance (29 CFR 1630.14(c)(1)). Coworkers are not on the list. EEOC’s position is that an employer may not tell other employees that someone is receiving an accommodation, because that usually reveals the disability.

The source of this rule is the ADA itself, not HIPAA. HIPAA’s Privacy Rule applies to health plans, health care clearinghouses, and most health care providers, and its definition of protected health information excludes employment records an organization holds in its role as employer (45 CFR 160.103). The note an employee hands to HR for an accommodation is protected by the ADA’s confidentiality requirement. See maintaining confidentiality regarding ADA accommodation requests.

Retaliation and Interference

It is unlawful to retaliate against anyone for opposing disability discrimination or for filing a charge, testifying, or participating in a proceeding, and separately unlawful to coerce, intimidate, threaten, or interfere with anyone exercising ADA rights (42 U.S.C. 12203; 29 CFR 1630.12). EEOC’s retaliation guidance states that a request for reasonable accommodation is itself protected activity. An employee whose request is properly denied can still bring a retaliation claim if adverse treatment follows.

Our article on workplace retaliation explains how these claims are built and how to avoid supplying the evidence.

Employer Responsibilities at a Glance

Keep the records. EEOC’s recordkeeping rule requires employers to preserve personnel records, expressly including requests for reasonable accommodation, for one year from the date the record was made or the personnel action was taken, whichever is later, and until final disposition once a charge is filed (29 CFR 1602.14). For a working list, use the ADA compliance checklist.

Accommodation requests rarely arrive alone. The same medical event can raise FMLA leave, workers’ compensation, a state leave law, and, for pregnancy-related conditions, the Pregnant Workers Fairness Act (pregnancy vs. disability accommodations compares two of them). That overlap is the subject of our two-day, instructor-led Leave and Accommodation Management seminar, which works through medical inquiries, the interactive process, extended leave, and return-to-work decisions using realistic scenarios.

Frequently Asked Questions

The Bottom Line

ADA accommodations are less about knowing a list of permitted adjustments than about running a sound process: recognize the request, talk to the employee promptly, ask only for the medical information you need, weigh the options against the essential functions, decide for reasons you can explain, keep the medical file separate, and do not punish the person for asking. Employers that do those things consistently are in a far stronger position, including in the cases where the answer was no.

Start with the ADA and Accommodation Guide for the full set of articles, keep the ADA FAQs and the Glossary of ADA Terms at hand, and when your cases start to involve more than one law, consider the Leave and Accommodation Management seminar. This article is general education, not legal advice; for a specific decision, consult employment counsel.