What is an employer’s responsibility to provide an accommodation for driving, and what are some accommodations available for driving? These are common questions that we receive at the Job Accommodation Network. To answer these questions, we need to consider that there are many different reasons that an individual may need an accommodation for driving. Some people may need accommodations related to their commute to work, others might need accommodation for on-the-job travel such as site visits in the field, and still others may be professional drivers who are responsible for transporting persons or material as an essential function of their jobs.
In addition, there are many different impairments that may interfere with a person’s ability to drive. For example, an office worker with a back condition who has difficulty sitting for long periods may be unable to handle a long commute. Or, a social worker who does home visits may experience a sudden spinal injury with paralysis and may need to have modifications to a work vehicle or find an alternative means of transportation. Or, a professional driver may have a seizure disorder and be temporarily disqualified from driving. As you can see each case is individual and may require different accommodation solutions.
Let us start with accommodation for driving to and from work. Many employees drive as a part of their commute to work and some may need to drive for a long time during their commute. Commuting to work can be a problem for many reasons, for example employees who have sitting restrictions due to a disability, employees with bowel and/or bladder issues that require frequent use of a restroom, employees who cannot operate a foot pedal due to limitations in the use of their lower extremities, employees who have difficulty operating a steering wheel due to limitations in the use of the upper extremities, and employees with medical conditions such as severe epilepsy that may limit their ability to operate a vehicle safely.
Employers, when faced with a request for accommodations related to an employee’s commute, might think that they are not responsible for the employees commute because it is outside of the work environment. To a certain extent that is true; employers do not have to provide transportation to and from work and/or pay for modifications for an employee’s personal vehicle as an accommodation under the ADA, unless they provide transportation or vehicle modification for all employees in general.
However, even though employers do not have to provide transportation to and from work, there are accommodations that employers must consider such as modifying an employee’s schedule so she can use public transportation or allowing an employee to work at home to avoid commuting all together. The reason employers must consider these types of accommodations is because employers control the time and location of an employee’s work as part of the work environment.
For more information, see:
- Accommodations Related to Commuting To and From Work
- Work At Home/Telework as a Reasonable Accommodation-Fact Sheet
Finally, another possible accommodation issue that may come up related to an employee’s commute to work is allowing the employee to park in an accessible parking space at work if the employer provides parking for employees. This might mean reserving the closest spot available to entrance. For individuals who use mobility devices, accommodations could include room to transfer in and out of the mobility device and access to a ramp and an accessible entrance. For more information about parking as an accommodation, see: Parking and the ADA, Act 1.
Driving Related to Job Performance
Employees with disabilities sometimes need accommodations for driving on the job. An employer’s responsibilities to provide an accommodation for on-the-job driving are greater than for commuting to work because clearly the driving is a part of the work environment. The first thing employers need to do is determine whether driving is an essential function of an employee’s job. For more information about how to determine when driving is an essential function, see: EEOC Informal Guidance Letter: ADA/Drivers License/Essential Functions/Reasonable Accommodation.
If driving is not an essential function, then the employer needs to consider accommodations such as providing alternative transportation or performing the job in another way that does not require travel. If driving is an essential function, then the employer needs to try to provide accommodations that would enable the employee to drive. For example, in the case of a professional driver where driving is clearly an essential function of the job, the employer may need to consider accommodations such as limiting hours or driving distance (if such accommodations would help) or allowing leave time until the employee can drive again. Or, depending on the employee’s limitations, it might be possible to modify the vehicle to enable the employee to overcome his limitations related to driving. For a list of products that may be useful for modifying a vehicle, see JAN’s SOAR.
When considering modifying an employee’s work vehicle, an employee and employer may benefit from a referral to a certified driver rehabilitation specialist. Here is link to the Association for Driver Rehabilitation Specialists.
With professional drivers who are responsible for transporting people or materials, there are often federal requirements related to a driver receiving a Commercial Driver’s License (CDL). Under the ADA, employers do not have to disregard such federal standards. However there may be waivers, exemptions, and/or pilot programs through which employees with disabilities who do not meet these qualifications could still get their CDL. You can find out information regarding these waivers at: U.S. Department of Transportation’s Waivers, Exceptions, and Pilot Programs.
Finally, there may be some situations where the employer may need to consider reassignment as an accommodation. This may be the case where, for example, driving is an essential function of the job, the employee is unable to drive due to a disability, and there is no accommodation that the employer can provide to enable the employee to drive. For information about reassignment, see: EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship.
As always, the best accommodation will depend upon the employee’s abilities, the essential functions of the employee’s job, and the employer’s capacity to provide the accommodation without incurring an undue hardship. If you have any questions, please contact JAN. You can contact us through phone, chat, or email.
- Burr Corley, MSW, Consultant, Motor Team, JAN
Conduct problems may be some of the most difficult issues to address in the workplace and oftentimes have little to do with a disability. Employers are often mystified by the nature and range of conduct issues that crop up. For more information on conduct issues, how they can be handled under the ADA, and real life situations and solutions, please read on.
According to the EEOC’s guidance on The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities, employers need not lower a conduct standard for an employee with a disability and can hold that employee to the same standard they hold other employees to. However, if a disability is causing the misconduct, the employer will need to consider providing accommodations to help the employee meet the standard. There is no specific timeframe in which an employee is required to ask for an accommodation under the ADA, but it would be advantageous for employees to disclose a disability and request reasonable accommodation before conduct problems arise, or at least before they become too serious. The timing of a request for reasonable accommodation is important, because an employer does not have to revoke discipline (including a termination) or an evaluation warranted by misconduct that occurs prior to an accommodation request.
Employees should not assume their employers know that an accommodation is needed just because the employer knows about the disability, nor does the employer’s awareness of the disability require the employer to ask the employee if the misbehavior is caused by the disability.
It is a good practice for employers to initiate a discussion about conduct problems before they become too serious in an effort to give employees the opportunity to address the concerns. An important point to make here is that an accurate assessment of an employee’s conduct may alert the employee that the disability is contributing to the problem. This may lead the employee to request reasonable accommodation to address the problem and improve behavior, which can be beneficial to both the employee and the employer.
See the following situations and solutions that involve conduct issues and standards:
Situation: A sales associate in a retail location strikes another employee while on a break. When the store manager intervenes, he terminates the employee who hit her co-worker. The employee discloses that she has bipolar disorder and is under a lot of stress and anxiety right now due to a spouse’s job loss.
Solution: The employer does not ask anything about the disability, nor does he rescind the termination. The company policy states a zero tolerance for fighting.
Situation: An employee with a known panic disorder is confronted in a small enclosed office space by her supervisor. Even though the employee knows that leaving the discussion without permission will not be viewed favorably, she tells her supervisor that she cannot be confronted and stay in this small space. After the supervisor warns her that stepping away from the conversation will result in a termination, the employee chooses to walk away.
Solution: The employer terminates the employee, the same punishment given to any employee who is insubordinate. The employee protests her termination, telling the supervisor that her panic and need to leave were results of her anxiety disorder. She says she was trying to get away from her supervisor when she felt the panic rising, but he ordered her not to leave the room. The employee apologized to her supervisor and asked to be reinstated. She also asked that in the future she be allowed to walk away from threatening situations because her stress and panic may cause her to act inappropriately. The employer leaves the termination in place because the employee’s request for reasonable accommodation came after her defiant behavior.
This example may not be as clear-cut as the supervisor thought. Since the disability was known, there might be an argument in the employee’s favor that she was asking for an accommodation when she told her supervisor that she could not be confronted and stay in that small space. It might also be said that she was not able at that time to think clearly and ask specifically for an accommodation to help, she just knew she had to get out of the situation before something more severe happened. If her supervisor did know she had an anxiety disorder, he may have been able to recognize what was happening and defuse it. The supervisor might have taken disciplinary action that was not as severe as termination, and allowed the employee the benefit of the doubt. This approach would certainly show a good faith effort to accommodate under the ADA.
Situation: A nurse with severe depression was written up after several verbal warnings for inappropriate conduct. She was placed on a thirty day plan of improvement (PIP) and warned that if the behavior did not stop within the stated time period, she would be let go. The employee decided to disclose her disability and ask for accommodations that would assist her in responding more appropriately to co-workers.
Solution: Because the employee disclosed and asked for accommodations, the employer put the PIP on hold until the employee provided medical documentation and accommodations could be made. The hospital did not have to rescind the discipline that occurred before the disability was known, but while employers can hold employees to the same conduct standards they hold others to, they are obligated to provide accommodations to help employees meet those standards. In this situation, once accommodations were put into place, the employer started the PIP.
Situation: An employee has recently begun to have workplace issues with refusing to do any work from her computer. She has suspicions that the employer has been monitoring her by placing devices in her computer. The employer assured her that is not the case, and had the IT department check out her computer as well, but the employee still refused to do any work that involved her computer. Because of the nature of these issues, the employer assumed that the employee was having psychological issues. He then required the employee to go home and prohibited her return to work until she had been cleared for duty by a psychiatrist.
Solution: By demanding a fitness-for-duty exam to be completed by a psychiatrist, the employer was assuming that the employee had a mental health impairment. A more effective alternative would have been to hold the employee to the performance and conduct standards of working from her computer and treating her refusal as a disciplinary infraction. This may have given the employee the opportunity to disclose that she was having issues, or may have given the employer the opportunity to ask this employee if there was something the employer could do to assist her in getting her work done. If the employee refused to cooperate with the employer at that point, she could be progressively disciplined according to company policy.
Situation: A 911 dispatcher began to have panic attacks on the job that caused him to leave his workstation and the phone lines to take a walk outside the building to try to calm himself down. The episodes lasted anywhere from 20-45 minutes and were increasing in frequency. What started out as a couple of episodes a month had progressed to several episodes daily.
Solution: The supervisor viewed this situation as a direct threat, and requested medical information from the employee to show that he was able to safely do his job. He included a job description for the physician to review. The supervisor also asked for strategies to keep this from happening on the job.
A direct threat means that an individual will be dangerous to himself or others. A health or safety risk can only be considered if it is “a significant risk of substantial harm.” Direct threat can be a pretty high standard to meet. The employer could have handled the situation as a performance issue – the employee was not doing his job if he was away from his workstation and not taking phone calls while having the panic attacks. If the employee disclosed at that time, then the employer could still have requested the medical information as a way to help understand how the impairment affects the employee. Accommodations that could reduce the anxiety at work that caused the panic attacks would then be considered.
- For more information, please see JAN’s “Dealing with Conduct Problems in the Workplace.”
- Melanie Whetzel, M.A., Senior Consultant, Cognitive / Neurological Team, JAN
Determining the essential job functions of a position can sometimes be very simple; however, under the Americans with Disabilities Act (ADA), this determination can also be very complex and confusing. When conflict arises between an employer and an employee it may hinge on the determination and interpretation of the essential job functions of a position. This conflict tends to be about what the essential job functions of a position are and whether an employee can perform those essential functions with or without a reasonable accommodation. Controversy in the courts remains. For example, is physical attendance in the workplace an essential function? It depends. Is overtime an essential function? It depends.
According to the rules issued by the Equal Employment Opportunity Commission to implement Title I, the employment provisions, of the ADA (29 CFR Part 1630), the following factors form the foundation for determining which job functions are essential:
- Whether the position exists to perform a particular function. For example, an individual may be hired to proofread documents. The ability to proofread the documents would then be an essential function, since this is the only reason the position exists.
- The number of other employees available to perform that job function or among whom the performance of that job function can be distributed. For example, if an employer has a relatively small number of available employees for the volume of work to be performed, it may be necessary that each employee perform a multitude of different functions.
- The degree of expertise or skill required to perform the function. For example, in certain professions and highly skilled positions the employee is hired for his or her expertise or ability to perform the particular function. In such a situation, the performance of that specialized task would be an essential function.
Although there may be additional reasons, a job function is considered essential because there is evidence to support such a determination. Evidence of whether a particular function is essential usually includes:
- The employer’s judgment as to which functions are essential;
- Written job descriptions prepared before advertising or interviewing applicants for the job;
- The amount of time spent on the job performing the function;
- The consequences of not requiring the incumbent to perform the function;
- The terms of a collective bargaining agreement;
- The work experience of past incumbents in the job; and/or
- The current work experience of incumbents in similar jobs.
Determining the essential functions of a position should be done on a case-by-case basis. In general, the essential functions of a position include all functions that are not marginal, but from a practical standpoint an employer needs to determine the fundamental duties of a position and keep these determinations up-to-date. The size and type of organization and industry, hiring practices, and current employees are all key pieces in this analysis. Remember to document your process, complete a thorough job analysis, record the important information, detail qualifications, and maintain consistency throughout the process.
For more information on developing job descriptions, see JAN’s A to Z: Job Descriptions.
Article courtesy of Beth Loy, Ph.D., Principal Consultant, Job Accommodation Network.
In the case of ADP Direct v. Exxon Mobil Research and Engineering Company (Superior Court of New Jersey A-4806-1OT4 October 26, 2012) the Court claimed that Exxon Mobil may have violated disability law by subjecting plaintiff’s continued employment to random testing, not imposed upon other employees who are not alcoholics.
In 2007 the employee disclosed that she suffered from alcoholism and was seeking treatment. Upon return from that treatment she was required to sign an agreement to submit to random alcohol testing (commonly part of a Last Chance Agreement). She was fired in 2008 after a positive test. The court pointed out that there was no evidence of performance problems, nor was her job safety-sensitive at the time of the test.
While this is most likely going to be appealed, it sends a word of caution. This causes a trap for employers. Because the employee voluntarily disclosed her disability, and there were no performance problems, it would in fact violate the ADA to have her consent to the random testing.
Last Chance Agreements should be enforced with care. To this date I have not seen a court strike down a policy where somebody was caught intoxicated on the job due to reasonable cause but this New Jersey opinion could evidence a shifting in legal opinion.
When is it appropriate to require an employee to complete a medical examination? This question presents a common challenge for employers. A federal court of appeals recently issued a decision that helps clarify an employer’s rights to seek a medical opinion when it is concerned about workplace safety. In Owusu-Ansah v. Coca-Cola Company, the Eleventh Circuit found that an employee’s threatening comments and behavior during a meeting with a supervisor were legitimate reasons to mandate that the employee pass a fitness-for-duty examination before returning to work. Click here for the full story by Worklaw® Network firm Franczek Radelet.
The U.S. Equal Employment Opportunity Commission (EEOC) has been busy updating its disability related regulations and materials. All employers should review the info here.
The EEOC has also released four revised publications on protection against disability discrimination in the workplace. The publications describe how the Americans with Disabilities Act (ADA) applies to job applicants and employees with cancer, diabetes, intellectual disabilities. You can find these documents on the EEOC website under “Disability Discrimination, The Question and Answer Series.”
Many people with common mental health conditions have a right to a reasonable accommodation at work under the Americans with Disabilities Act (ADA). When requesting accommodations, employees may sometimes need supporting documentation from their mental health providers. An EEOC fact sheet briefly explains the law on reasonable accommodation and the mental health provider’s role in the process. Click here to read more.
The Department of Fair Employment and Housing recently began enforcing newly revised regulations addressing discrimination based on disability. The final regulations, which took effect on December 30, 2012, primarily update the old regulations. Among other things, the new regulations:
- include several updates to the definition of “disability” to conform to the federal Americans with Disabilities Act Amendments Act of 2008 and the broad definition contained in Government Code section 12926.1;
- provide examples of disabilities including chronic and episodic conditions, and temporary disabilities. The new regulations note a few exclusions from the term “disability,” such as the common cold, mild cuts or abrasions, and the flu;
- clarify that the term “medical condition” may include a “genetic characteristic” (in order to conform to the federal Genetic Information Non-Discrimination Act);
- add guidance regarding the phrase “essential job functions,” and specify that the elements of a discrimination claim now require the employee to establish that he or she can perform the job’s essential functions, with or without accommodation;
- provide more detail regarding the “interactive process” obligations for both employers and employees. Notably, an employee’s exhaustion of California Family Rights Act or Family and Medical Leave Act leave is now considered notice to the employer that the employee may need an accommodation; and
- recognize medical leave as a form of accommodation, but expressly state that employers need not provide “indefinite” leave.
Article courtesy of Thomas Ingrassia of Petit Kohn (www.pettitkohn.com)
Upon receiving a request for accommodation under the ADA, when the disability and/or need for accommodation are not obvious, an employer is permitted to ask for medical documentation from an employee. The purpose for requesting this documentation is to assist the employer in determining if the individual has an ADA disability by learning about the nature of the disability and the individual’s functional limitations. Of course, there is no requirement under the ADA to obtain medical documentation to grant an accommodation and often it is unnecessary. Employers are encouraged to focus less on who has a disability and more on making accommodations that are reasonable and effective.
Medical documentation often establishes the need for long-term accommodations for an employee who has a disability of an extended or lifelong duration. An example would be an employee with diabetes who needs a flexible work schedule to receive weekly dialysis. The accommodation of a flexible schedule could be needed indefinitely over the term of the individual’s employment and it is likely that the individual’s medical condition and/or need for accommodation will not change over time. Employers sometimes ask JAN Consultants if updated medical documentation can be requested annually from employees who are receiving long-term accommodations for ADA established disabilities. The stated purpose for such a request is to “recertify” an employee’s need/qualification for an accommodation. The following questions address this issue.
- Can an employer annually request medical documentation from employees who are receiving long-term accommodations?
Requesting annual medical documentation would not be prudent under the ADA. Where reasonable medical documentation that establishes an ADA disability was provided by an employee for the purpose of obtaining an accommodation, an employer will not have cause to request updated information on an annual basis. According to the Equal Employment Opportunity Commission (EEOC), an employer cannot ask for documentation when the disability and the need for reasonable accommodation are obvious, or the individual has already provided the employer with sufficient information to substantiate an ADA disability.
- What if there is a change in limitations and/or accommodations related to the same ADA disability?
If the medical information provided previously sufficiently established the existence of a long-term impairment that substantially limits a major life activity, then EEOC says that an employer cannot ask for documentation that the person has an ADA disability. However, the employer may ask for reasonable documentation that addresses the specific need for the accommodation (if the need is not obvious).
- Is an individual with a disability who is receiving a reasonable accommodation entitled to receive it forever?
While many accommodations are provided long-term, the EEOC has informally stated that an individual with a disability receiving a reasonable accommodation is not necessarily entitled to receive it forever. There are several reasons why an employer may stop providing a specific accommodation, or change the type of reasonable accommodation being provided. For example, a person’s disability may no longer necessitate a reasonable accommodation, or the accommodation might become an undue hardship on the employer. It’s important for the employer and employee to discuss any changes in accommodations. If an accommodation becomes an undue hardship, it may be possible to identify an alternative solution. JAN Consultants can help identify alternative accommodation solutions. Visit AskJAN.org for more information.
To learn more about requesting medical documentation from employees under the ADA, see questions 6 – 8 in EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA. Also, JAN offers many resources related to requesting medical documentation, determining disability, and providing and maintaining job accommodations. Examples include:
- Five Practical Tips for Providing and Maintaining Effective Job Accommodations
- How to Determine Whether a Person Has a Disability under the Americans with Disabilities Act (ADA) (Updated)
- Medical Inquiry in Response to an Accommodation Request
- Tracie DeFreitas Saab, M.S., Lead Consultant for the Job Accommodation Network (JAN)