EEOC Informal Discussion Letter

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

ADA: Reasonable Accommodation

February 3, 2005

Dear:

This letter responds to your letter to the Equal Employment Opportunity Commission (EEOC) inquiring about your rights under the Americans with Disabilities Act (ADA).^[1] Specifically, you ask whether: (1) you will lose pay for leave taken in order to receive treatment for Breast Cancer; (2) you will lose pay for leave taken because you have difficulty completing your full daily work schedule due to fatigue; (3) you can request your employer to modify your work tasks by eliminating your filing duties; (4) you have Aany rights@ if you reduce the number of hours you work; and (5) you will still be entitled to "benefits" if you only work 30 hours per week. This letter briefly addresses these issues.

The ADA prohibits employment discrimination against a Aqualified individual with a disability@ because of a disability. 42 U.S.C. § 12112; 29 C.F.R. § 1630.4. A disability is a physical or mental impairment that substantially limits one or more of an individual's the major life activities. 42 U.S.C. § 12112; 29 C.F.R. § 1630.2(g). The ADA also requires employers to make reasonable accommodation to the physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless the employer can demonstrate that the accommodation would impose undue hardship on the operation of its business. 42 U.S.C. § 12112; 29 C.F.R. § 1630.9.

A reasonable accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunity. Leave for treatment or other reasons related to a disability, flexible and part-time work schedules, changes to the physical work environment, and job modification (e.g., (eliminating non-essential job functions that cannot be performed due to a disability) are examples of reasonable accommodation.

Without all of the facts concerning your medical condition, we cannot determine whether it meets the ADA's definition of a disability. Assuming it does, however, your employer must first allow you to use whatever accrued leave is available to you under its leave policy. To the extent you need more leave than your employer's policy provides, you may be entitled to additional unpaid leave unless this would result in undue hardship. The existence of undue hardship would depend on factors such as whether your employer could find other ways to have your duties performed in your absence or the consequences for the operation of your employer's business if it could not. It is important to note that an employer may "charge" the leave taken as sick, annual, or unpaid leave in the same manner as it does for similarly situated employees but may not penalize an employee with a disability for work missed during leave taken as a reasonable accommodation. (See EEOC's Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (October 17, 2002)), http://www.eeoc.gov/policy/docs/accommodation.html.

In response to your questions about your legal rights if you reduce the number of hours you work each week from forty to thirty, under the ADA a modified or part-time work schedule is a form of reasonable accommodation absent undue hardship. An employee receiving a part-time schedule under the ADA, however, is entitled only to benefits, including health insurance, that employees working the same number of hours receive. For example, if employees who work fewer than forty hours per week are not provided health insurance, then the employer does not have to provide such coverage to an employee with a disability who works fewer than forty hours as a reasonable accommodation.^[2]

Whether your employer must eliminate your filing duties as a reasonable accommodation depends on whether they are essential or marginal. An employer does not have to eliminate an essential function as a reasonable accommodation. We do not have enough information to determine whether your filing duties are essential or marginal. Factors that are important in making this determination include your employer's judgment; whether the functions are listed as essential in a job description; whether other employees in your position have been required to perform these duties; the number of other employees who are available to perform the function if you are not; the amount of time spent performing the function; and whether the job exists for the purpose of performing the function. 29 C.F.R. § 1630.2(n).

Alternatively, an employer also may provide other types of reasonable accommodation that can help an employee with a disability reduce barriers to employment. A reasonable accommodation need not be the best accommodation available, as long as it is effective; that is, it gives the person with a disability an equal opportunity to perform the essential functions of the job or enjoy equal benefits and privileges of employment. For example, your employer might provide you a longer work day during which you could take longer or more frequent breaks to deal with fatigue related to your breast cancer treatment. In cases where the proper accommodation may not be so easy to identify, the employer and employee must work together to identify an appropriate one. Where two or more forms of accommodation are possible, the EEOC has said that primary consideration should be given to the choice of the individual with a disability.

Finally, in your letter you briefly mention that your place of employment relocated to an "old house" and that your office is now inconveniently located in the second floor of the building. You also mention that the building "does not have an elevator" and that the work area is not accessible to individuals with disabilities. As previously mentioned, under the ADA, an employer must provide "reasonable accommodations" that ensure employment benefits to employees with disabilities are equal to those benefits enjoyed by employees without disabilities. This includes a duty to make working and non-working areas accessible to employees with disabilities, absent undue hardship. 29 C.F.R. § 1630.2(o). We cannot determine what measures your employer could make to increase the accessibility of your work area. However, even if making the second floor work area accessible would impose an undue hardship, other accommodations should be considered, such as moving your work area to another location if this is possible.

We hope that this information is helpful to you. Please note, however, that this letter is an informal discussion of the issues you raised and is not an official opinion of the Equal Employment Opportunity Commission.

Sincerely,

Christopher J. Kuczynski
Assistant Legal Counsel
ADA Policy Division

^[1] You may also have rights under the Family Medical Leave Act (FMLA). The FMLA is enforced by the DOL's Employment Standards Administration, Wage and Hour Division. For more information on the FMLA you may contact the DOL at the following address: U.S. Department of Labor, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC, 20210. You may also obtain information at http://www.dol.gov/esa/whd/fmla/.

^[2] In regard to your specific questions about disability benefits, the appropriate agency to contact is the Department of Labor (DOL). Within DOL the Employee Benefits Security Administration (EBSA) handles questions related to employment and health benefits. Kentucky is covered by the EBSA's Cincinnati Regional Office. You can contact them at the following address: 1885 Dixie Highway, Suite 210, Ft. Wright, KY, 41011-2664. You can also contact them via phone at (859) 578-4680.

This page was last modified on April 27, 2007.