Accommodating a Disability under the Americans with Disabilities Act Checklist

by Judith Droz Keyes, Davis Wright Tremaine LLP

This checklist guides employers' counsel in properly evaluating and responding to an employee's request for a workplace accommodation for a disability. This is a non-jurisdictional checklist; it does not cover all potential state and local law distinctions. The analysis is under the federal Americans with Disabilities Act as amended in 2008 by the Americans with Disabilities Amendments Act (ADA). 42 U.S.C. § 12101 et seq. Although this checklist focuses on accommodating employees with disabilities, the same basic analysis also applies to job applicants with disabilities.

This checklist mentions some state law considerations, but check state and local laws for specific requirements. In addition to laws protecting employees with disabilities, some states' pregnancy-protection laws or workers' compensation laws may require accommodations. The Family and Medical Leave Act (FMLA) and analogous state laws may entitle an employee to time off or a reduced schedule. These laws are not mutually exclusive, so when a situation may implicate another law, you must identify and consider all of the applicable requirements.

For information on reasonable accommodations under the ADA, see Americans with Disabilities Act: Guidance for Employers and Americans with Disabilities Act: Employee Rights and Employer Obligations, Chapter 6, What Is a Reasonable Accommodation?. For more information on what is a reasonable accommodation under the ADA, see Employment Law Answer Book (CCH) Q 4:128. For sample forms and policies, see the Discrimination, Harassment, and Retaliation—EEO Laws and Protections forms page.

For a video highlighting the ADA prohibition of discrimination, harassment, and retaliation, see ADA Prohibition of Discrimination, Harassment, and Retaliation Video.

For videos on the key issues under the ADA for mental health in the workplace, see Mental Health in the Workplace: Key Issues under the Americans with Disabilities Act (Part 1) Video and Mental Health in the Workplace: Key Issues under the Americans with Disabilities Act (Part 2) Video.

For a video highlighting the ADA prohibition of discrimination, harassment, and retaliation, see ADA Prohibition of Discrimination, Harassment, and Retaliation Video.

Note: As shown in the graph below, claims for accommodation under the ADA (Accommodation Cases) increased steadily from 2,398 in 2013 to 3,579 in 2019. Case filings dipped by 10% in 2020 and 2021 before rising again in 2022 to a level equivalent to the number of cases filed in 2019. The recent spike in 2022 may be explained, at least in part, by the increasing trend of mandating that employees return to the office.

Accommodation Cases Filed from 2013 to 2022

Source: Lex Machina®, Employment Litigation Report 2023. For more information on Lex Machina and to sign up for a live demo, click here.

Key ADA Definitions

To assess an employer's obligations to a disabled employee, you must understand some of the ADA's key terms.

  • •Employer. The ADA's reasonable accommodation requirements apply to employers with 15 or more employees. 42 U.S.C. §§ 12111(5), 12112(b)(5); 29 C.F.R. §§ 1630.2(e), 1630.9(a).
  • •Qualified individual. The ADA does not require employers to provide an accommodation to a disabled employee who is not a qualified individual. A qualified individual is one who can perform the essential functions of the position, either with or without an accommodation. 29 C.F.R. § 1630.2(m).
  • •Disabled. An employee is considered disabled if he or she has a physical or mental condition that substantially limits a major life activity. 42 U.S.C. § 12102(1); 29 C.F.R. § 1630.2(g). For guidance on psychiatric disabilities at work, see Mental Health Issues at Work.
  • •Substantially limits. This term is broadly interpreted to include, for example, serious but temporary disabilities, such as a badly broken leg. 29 C.F.R. § 1630.2(j).
  • •Major life activities. These include sleeping, concentrating, thinking, working, and a host of other activities. 42 U.S.C. § 12102(2); 29 C.F.R. § 1630.2(i).
  • •Reasonable accommodation and undue hardship. An accommodation is reasonable when it does not create an "undue hardship" for the employer and it enables the employee to perform the "essential functions" of his or her job. 42 U.S.C. § 12111(10); 29 C.F.R. § 1630.2(p) (undue hardship) and 1630.2(n) (essential functions). Reasonableness is a fact-specific inquiry that depends primarily on the employee's position at the company, the size of the company, and the specifics of the accommodation. 42 U.S.C. § 12111(9); 29 C.F.R. § 1630.2(o).
  • •Interactive process. In the course of identifying a reasonable accommodation, or deciding that there is no accommodation that is reasonable, the employer must initiate an interactive process in which it works with the employee to identify potential reasonable accommodations. 29 C.F.R. § 1630.2(o)(iii)(3).

How an Employee Triggers the Accommodation Analysis

There is no mandatory format or magic words, that an employee must use to trigger the accommodation analysis. The employer is responsible for interpreting the employee's statements as a request for an ADA accommodation.

  • •Medically required accommodations. Often an employee will ask for an accommodation of time off (a leave of absence) or an adjustment to the employee's schedule (part-time or restricted hours). However, the employee may not mention the ADA or use the word "accommodation." The employee may use words such as "My doctor has taken me off work" or "My doctor says I can only work four days a week."
  • •Situations that do not implicate the ADA. Advise employers not to assume that the employee is disabled and not to embark on the accommodation analysis immediately. When a situation emanates from an employee's poor job performance, failure to adhere to a work schedule, or conduct warranting discipline, the employee may simply say something such as, "I can't do what you're requiring," or "It's not my fault that I'm late." In that situation, the best practice is for the employer to invite the employee to explain why he or she is unable to do what is required. The employer should ask whether there is anything the employee wants the company to take into consideration when formulating a response to the situation.
    • ○ If an employee says he or she cannot do the job or meet the job requirements but has no coherent, legitimate explanation for why, the employer should seriously consider terminating the individual's employment without further notice.
    • ○ If the employee responds by describing a physical or mental limitation, the employer should make the link to a possible disability and proceed with the accommodation analysis.

The employer should follow the steps below to determine when an accommodation is needed.

Step 1: Determine Whether the Employee Is Disabled

Only employees who meet the definition of "disabled" are entitled to protection under the ADA. Under the ADA, the employer is entitled to know the nature of the employee's disability.

  • •Requesting information about the employee's disability. Employers should use discretion when asking for this information. Some states, such as California, prohibit the employer from asking for this information. Cal. Gov't Code § 12940(e). In those states, legally speaking, the employee's privacy interests trump the employer's need to know.
  • •Confirming the disability. In all states, the employer has a right to confirm that the employee in fact has a physical or mental condition that in some specific way limits the employee's ability to perform his or her job, or to work at all. If the employee's disability is obvious (e.g., the employee is confined to a wheel chair), the employer may not need a doctor's confirmation. An employer that doesn't need a doctor's confirmation can proceed to Step 2. If an employer does need confirmation, it should come from the employee's treatment provider. The employer must follow this process to get confirmation:
    • ○ Require certification from a licensed treatment provider. Require that the employee provide written certification from his or her treatment provider. The provider need not be an M.D., but must be a licensed provider of some sort.
    • ○ Require certification in writing. The written certification must confirm that the employee has a physical or mental condition that either precludes the employee's working or requires some form of accommodation in order for the employee to work.
    • ○ Consider leave pending receipt of certification. Consider placing the employee on leave until the employer receives the certification.
    • ○ Set a deadline for certification. Give the employee a deadline for providing the certification. An employer may choose to inform an employee that it will not consider any accommodation and may terminate the employee's employment if it does not receive the certification within the deadline.
    • ○ Review the certification. Review the certification upon receipt to be sure it includes:
      • — The date when the disability/need for accommodation began
      • — An indication of whether the need for accommodation is permanent or temporary
      • — A projected ending date if the need for accommodation is temporary
      • — A clear statement of the employee's restrictions or limitations
    • ○ Address incomplete or inadequate or questionable certifications. If the certification proves to be incomplete, inadequate, or questionable, either:
      • — Require the employee to provide additional certification from the doctor –or–
      • — Seek and obtain the employee's permission to contact the doctor to obtain the additional information directly
    • ○ Obtain a second opinion when necessary. In rare situations, the employer may want to obtain a second opinion from a doctor of its choosing and at its expense. An employer must have a reasonable basis for requiring a second opinion. If the second opinion disagrees with that of the employee's treatment provider, the employer cannot deny the existence of the disability and/or the need for an accommodation until it obtains a third tie-breaking opinion.
    • ○ Create a separate file for the accommodation process records. Create a separate file for an employee's accommodation consideration process. Do not keep the treatment provider's certification in the employee's personnel file.

Step 2: Identify the Type of Accommodation the Employee Needs

Based on the treatment provider's certification, identify precisely what accommodation the employee seeks. The following are among the forms of accommodation that employees request most often, with the question(s) an employer should ask the requesting employee:

  • •A leave of absence (e.g., for cancer treatment)
    • ○ When do you want the leave to begin and end?
    • ○ Could you perform any work during the leave?
  • •A reduced or restricted work schedule (e.g., for kidney dialysis)
    • ○ Exactly what schedule could you work?
  • •An unpredictable work schedule (e.g., for migraine headaches)
    • ○ How much notice could you provide before an absence?
    • ○ What would trigger your need to leave work early, or to report late?
  • •A change in work location (e.g., because of allergies)
    • ○ What criteria would the new work location have to meet?
  • •A change in job duties (e.g., for a back condition that restricts sitting)
    • ○ Is there a device or tool that would enable you to perform the full job duties?
    • ○ How would the day be structured with the restricted duties excised, and would the resulting job be full-time or part-time?
  • •Specific equipment or software (e.g., for carpal tunnel syndrome)
    • ○ Does the equipment or software exist?
    • ○ Is it compatible with the employer's existing equipment?
    • ○ How much does it cost?
    • ○ How long would it take to get it?

Step 3: Evaluate Whether the Accommodation Is Reasonable or Is an Undue Hardship

Before meeting with the employee, consider whether the employer can or cannot make one or more accommodations. Remember that this is an objective analysis. The employer may not take into consideration whether it wants to make an accommodation or whether it thinks the accommodation is really justified (i.e., that the employee is not faking or exaggerating). Consider these factors:

  • •Employee's job. What is the employee's job?
    • ○ Is there a job description?
      • — Is it accurate?
      • — Does it identify the essential functions of the job?
    • ○ How many other employees do the same job?
    • ○ How pivotal is the employee's role in the organization?
  • •Impact of an accommodation on other employees. Who else would an accommodation impact?
    • ○ If there is an established seniority system, where does the disabled employee fall in the ranking?
    • ○ In a leave of absence situation, can someone temporarily fill in for the employee?
      • — From an outside agency?
      • — From within?
  • •Performance of the "essential functions" of the job. Can the employee perform the essential functions of his or her job if the employer makes the accommodation?
  • •Effect of an equipment or facilities adjustment. If the accommodation involves an equipment or facilities adjustment:
    • ○ Where would the accommodation occur?
    • ○ Are there safety implications?
    • ○ Would the adjustment affect other employees?
    • ○ Should an expert (e.g., an ergonomist) be involved?

Step 4: Tentatively Decide Whether the Accommodation Is Reasonable

The EEOC has issued clear guidance on deciding whether an accommodation is reasonable. The primary considerations include how much the accommodation will cost and how disruptive it will be. Larger organizations are considered better able to tolerate cost and disruption than smaller organizations.

Consider these issues when determining whether an accommodation is reasonable:

  • •Multiple potential accommodations.
    • ○ If you decide that the employer can reasonably make one or more accommodations, be precise about what they would be.
    • ○ If there is more than one possible accommodation and the employer wants to choose only one, identify which one the employer is prepared to make and the business reason for choosing that one.
  • •Accommodations that involve a leave of absence. If the accommodation involves a leave of absence, be clear about the end date and determine whether that amount of leave is reasonable. For EEOC guidance on leave as a reasonable accommodation, see Employer-Provided Leave and the Americans with Disabilities Act. For additional information regarding leave as an accommodation, see Leave as a Reasonable Accommodation in Americans with Disabilities Act: Guidance for Employers.
  • •Other employees' opinions. Remember that the employer may not consider whether other employees like the accommodation or feel that it is fair when determining whether it is reasonable. From an employee relations standpoint, it may be hard to manage these dynamics, but employers should be mindful and address these possibly awkward situations.
  • •What the doctor decides and what the employer decides. Keep in mind that although doctors determine an employee's medical or psychiatric needs and/or limitations, it is the employer (not the doctor) that determines whether a workplace accommodation is or is not reasonable, and whether to grant it.
    • ○ The doctor, not the employee, decides whether the employee needs an accommodation. During the interactive process and at other times, the employee may express a view about possible alternative accommodations, but it is the doctor who decides what the employee's restrictions are.
    • ○ The employee cannot override the doctor. If the doctor says the employee cannot work, then the employer must not permit the employee to work even if the employee insists that she or he is able to work.
    • ○ The employer may not choose to depart from the doctor's findings. If the doctor says the employee cannot work more than 15 hours over three days, the employer cannot second guess the doctor and schedule the employee for 15 hours over four days.
    • ○ If the employer has reason to doubt the veracity of the employee's doctor's order, the employer can request that the employee go back to the doctor for confirmation or can get a second medical opinion, but without that opinion, the employer cannot overrule the doctor. Any accommodation the employer decides to offer must comply with the doctor's orders.
    • ○ You may need to remind the employer that doctors do not grant workplace accommodations. Employers do that. Evaluating an employee's right to an accommodation, including a leave of absence, is the employer's responsibility and right. Avoid using, or allowing the employee to use, uncorrected statements such as "My doctor has put me on leave."

Step 5: Talk with the Employee about the Potential Accommodation

If the situation does not allow for any nuance or variation, such as when an employee who is totally unable to work seeks a leave of absence, there is nothing to discuss with the employee. But in other situations, the employer is expected to engage in an interactive process with the employee to evaluate a possible accommodation. The two parties may begin organically to discuss the situation, or they may need to schedule a meeting for that purpose. Either way, the employer must clearly satisfy its interactive process obligation.

If there is to be a meeting:

  • •The employer should send two representatives: one who knows the situation at hand as well as the company's rights and obligations (a human resources representative) and one who knows the employee (a manager or supervisor). The company's representatives should:
    • ○ Come prepared with the treatment provider's certification and the employer's reasonableness analysis.
    • ○ Present the facts to the employee in an objective way, without being paternalistic or judgmental.
    • ○ Tell the employee what conclusions the employer has tentatively reached about what is and isn't possible/reasonable.
    • ○ Ask the employee whether there is anything the employer has missed or misunderstood.
    • ○ Listen to the employee respectfully, and be open to suggestions the employee may make that the employer has not considered.
    • ○ Confirm the interactive process in a writing and preserve it in the file.

Step 6: If the Employer Denies the Accommodation, Be Prepared to Explain

If the employer will not make the accommodation because it would be an undue hardship (or is simply impossible), the employer must either place the employee on a leave of absence until she or he no longer needs the accommodation (if the situation is temporary), or terminate the employee's employment.

Advise the employer to follow these best practices for denying accommodations:

  • •Keep written records of the precise reasons why the employer concluded that the accommodation would pose an undue hardship.
  • •Advise the employee in writing why the employer will not make the accommodation.
  • •If the denial involves a leave of absence:
    • ○ Confirm that the denial does not violate any other law (e.g., the FMLA).
    • ○ Confirm that the denial is not at odds with any company policy or past practice.
    • ○ If the employer treated another employee more favorably in the past, document why this situation is different.

Step 7: If the Employer Grants the Accommodation, It Must Manage the Accommodation

There is a risk that once an employer makes an accommodation, personnel will forget its genesis and come to expect it or consider it the norm. Or, especially in the case of a leave of absence, it can go on longer than the employer originally intended.

The employer must monitor and manage the accommodation by taking these steps:

  • •Record in writing. Record in writing the accommodation's exact parameters and the employer's expectations.
    • ○ If the accommodation is of the "we'll try it and see" variety, establish a check-in date and responsibility.
    • ○ Give a copy to the employee and keep a copy in the file.
    • ○ Be certain the employee understands what the employer expects of him or her.
    • ○ Assure the employee that there will be no negative repercussions for the accommodation, and tell him or her who to talk to if he or she believes that a repercussion has taken place.
  • •Notify appropriate individuals. Communicate the accommodation to those who need to know.
    • ○ Inform supervisors and team leads of the accommodation, its contours, and its duration.
    • ○ If other employees need to know, tell them only what they need to know.
    • ○ Convey the information in a way that protects the disabled employee's privacy to the extent possible and that emphasizes the company's endorsement of and support for the accommodation.
  • •Monitor the accommodation. In situations other than leaves of absence, monitor the accommodation to be sure it is proving effective and that both the employee and management are respecting and not abusing it.
  • •Consider leave of absence circumstances. In leave of absence situations:
    • ○ Be sure the supervisor and other employees know whether they may contact the absent employee, and any limitations on that contact.
    • ○ Monitor the leave so that two weeks before its expiration date, the employer is in communication with the employee about the employee's return to work.
    • ○ If the employee returns to work with restrictions, or cannot return by the accommodation's end-date and seeks an extension of the leave, the employee is asking for a new accommodation and the process begins anew.