Reasonable Accommodations - Guidance for US Employers and Recruiters
What is a Reasonable Accommodation?
The Americans with Disabilities Act imposes a duty to make “reasonable accommodations” for people with disabilities. Reasonable accommodations are changes you need to implement or actions you need to take to prevent an employee or candidate with a disability from being at a disadvantage, whether by virtue of a physical feature of your premises (such as full access to the facilities or access to accessible online employment applications) or where people with a disability need reasonable assistance to perform the essential functions of their jobs (or to apply for a job). Accommodations can be required at every stage, from job design, interview and assessment, through to making an offer, assisting an employee to do his or her work and decisions over the retention of existing employees.
Your selection processes must be capable of responding to actions either requested by or required for applicants with disabilities who may need reasonable accommodation(s) to be made. You only have to make these changes where you know, or could reasonably be expected to know, that a job applicant or existing employee is disabled within the meaning of the Americans with Disability Act (ADA). Importantly, a job candidate or employee is not required to expressly ask for assistance under the ADA. The employer must be aware that much vaguer statements can be enough to place the ADA in the picture. If, for example, an employee says “I’m having trouble performing my job due to my medical situation,” that would be enough to require the employer to initiate the interactive process.
Definition of Reasonable Accommodation:
The duty to provide reasonable accommodation is a fundamental statutory requirement because of the nature of discrimination faced by individuals with disabilities. Although many individuals with disabilities can apply for and perform jobs without any reasonable accommodations, there are workplace barriers that keep others from performing jobs which they could do with some form of accommodation. These barriers may be physical obstacles (such as inaccessible facilities or equipment), or they may be procedures or rules (such as rules concerning when work is performed, when breaks are taken, or how essential functions are performed). Reasonable accommodation removes workplace barriers for individuals with disabilities and requires actions to assist someone in performing a job.
What Is Reasonable?
The law is all about being reasonable. What is reasonable is not clearly defined by the law, so you need to consider whether you are confident that something is reasonable in the particular circumstances and implement that solution. If in doubt, always take advice from professionals in this area, such as The USBLN, ASKJAN, Disability.gov or seek independent legal advice.
In the meantime, some of the elements you should consider are:
- Is the accommodation effective to reduce or eliminate that particular person’s disadvantage? If there is no impact, then it is unlikely to be an appropriate reasonable accommodation.
- Is it practical? The simpler it is to put in place, the more likely it is to be considered reasonable for you to make the accommodation. However, there are times when it can prove more difficult to put the accommodation in place. In those circumstances you need to weigh a potential adjustment against other factors and not simply discount it without careful consideration.
- Are the associated costs and resources required to implement the adjustment reasonable?
- And remember as well that there are some accommodations that might be reasonable to some employers, but constitute an undue hardship for others. For example, an accommodation that is not unduly expensive for a large employer may be an undue hardship for a small employer.
Some Of The Things You Should Do
- Always start at the point of job analysis and be certain you can justify the criteria, assessment and the process.
- Check in advance if your recruitment and/or selection process is accessible, including your on-line process.
- Have a process in place to work out the accommodations required and to implement them.
- Provide a helpline and/or email address for people to contact for support or information on reasonable accommodations throughout your selection process.
- When using assessments, check with the test provider if they present any barriers for applicants with disabilities. It is recommended to only use a test provider who can provide advice and support on reasonable accommodations.
- For assessments contact Talent Assessment Support, which can provide more information to help you prepare ahead of the assessment date.
What Can I Ask Job Applicants?
Ask if they need reasonable accommodations to take part in the recruitment process. Given the restriction on asking pre-employment health or disability-related questions, make it clear to applicants that the only reason you are asking is to make sure that you remove any barriers during the recruitment and selection process. In these cases, you should only use their answers for working out the adjustments they need and whether these are reasonable. If you used the fact that the person needed reasonable adjustments as a reason not to take them further into the recruitment process, this would be unlawful discrimination.
It should also be made clear that applicants are under no obligation to inform you of a disability if they do not wish to share that information. In all cases you should ensure that you have received all the advice you need including, but not limited to, legal advice in the event of uncertainty.
If a job applicant does not ask for accommodations in advance but turns out to need them, you must still make them, although what is reasonable in these circumstances may be different from what would be reasonable with more notice. You must not hold the fact that you have to make last minute accommodations against the applicant. It is very important to ensure you promote your commitment to reasonable accommodations throughout the recruitment and selection process.
Reasonable Accomodations Options
Reasonable accommodation options should be limited only by your imagination and the term “reasonable”. Depending on your choice of test provider you will usually have a choice of reasonable accommodation options to consider and discuss with the candidate, as in the case of our product range. In many cases, the best option will be a blended approach combining a number of adjustments to achieve your end goal of providing the candidate with a suitable reasonable accommodation.
Reasonable accommodations can involve one or more of the following:
- Changing the way things are done
- Changing physical features
- Providing additional equipment, sometimes referred to as auxiliary aids or accommodations
- Here are examples of accommodation situations that arise in the assessment process:
- (1) a visually impaired candidate who needs to be given accommodation in the assessment process, such as having questions read to him or her or by using a braille instrument or modified software;
- (2) a candidate with psychological or learning issues such as Obsessive Compulsive Disorder, Attention Deficit Disorder or Dyslexia, who may need more time to complete an assessment;
- (3) a candidate with a stress disorder, who may need someone to more fully explain the test process; or
- (4) a candidate with a physical disability that may need a special keyboard, a paper version of the test or other similar accommodation (especially in situations where the assessment is given in a central location).
If a candidate cannot access an assessment, you will have to try accommodating that person. If accommodations cannot be made, you may need to contact our support or your test provider to get help and support on how to interpret and compare his or her results with those of the other applicants.