Pop quiz: What’s the most common type of discrimination claim filed with the Equal Employment Opportunity Commission? Historically, race and sex discrimination. But now, claims under the Americans With Disabilities Act surpass claims for race and sex discrimination.
Like other antidiscrimination laws, the ADA prohibits discrimination and harassment based on a protected characteristic—in this case, disability. It also prohibits retaliation. But the ADA imposes an additional obligation to provide “reasonable accommodation” to qualified individuals with a disability. This obligation leads to significant litigation and poses unique challenges to the staffing industry because it is the client who typically controls the premises and work performed, and/or supervises the employees. Yet, the client may believe that requests for accommodation are the staffing firm’s problem—not theirs.
Defining ‘Reasonable’ in Reasonable Accommodation
A reasonable accommodation can include many things, such as modification or adjustment to the job or work environment that enables an employee with a disability to perform the essential functions of the job. Essential functions are the fundamental duties of the position and are distinguishable from ancillary functions. Employers are not required to eliminate the essential functions or lower production standards. For example, if every employee is required to pack 100 boxes in an hour, a reasonable accommodation could give the employee equipment or another means that allows them to meet that requirement. Generally, a reasonable accommodation is not reducing the requirement, although proration may be necessary if the employee is granted time off as a reasonable accommodation.
Importantly, the legal obligation is to provide a reasonable accommodation—not necessarily the requested accommodation. The ADA contemplates an interactive dialogue where the company and employee exchange information and discuss potential accommodations. Then, the employer can select a reasonable accommodation based on the facts and circumstances.
Employers must provide a reasonable accommodation unless it imposes an undue hardship on the company. An undue hardship is a high legal standard, and it is more than a mere inconvenience. Courts generally review (1) the nature and cost of the accommodation; (2) the overall financial resources and number of employees at the facility involved; (3) the overall financial resources, number and type of facilities, and number of employees of the employer as a whole; and (4) the impact of the accommodation upon the operation of the facility involved, the ability of other employees to perform their duties, and the facility’s ability to conduct business.
The Accommodation Landscape Is Broad
Other laws also require reasonable accommodation. Under Title VII of the Civil Rights Act, employers must provide reasonable accommodation for sincerely held religious beliefs. These requests often include time and locations to pray, days off to observe religious holidays, and modifications to the staffing firm’s or a client’s dress code.
Likewise, the Pregnant Workers Fairness Act requires employers to provide reasonable accommodation to a qualified employee’s or applicant’s known limitations related to pregnancy, childbirth, and related medical conditions. “Related medical conditions” are conditions that are “related to, affected by, or arise out of pregnancy or childbirth.” The current regulations (expected to be modified once the EEOC has a quorum) provide the following nonexhaustive examples: termination of pregnancy; lactation and conditions related thereto; menstruation; postpartum depression, anxiety, or psychosis; and many other conditions. Some courts have vacated certain discrete portions of the EEOC’s PWFA regulations and guidance. The obligation to provide accommodation under the PWFA is broader than that under the ADA because, for a currently pregnant employee, employers are required to provide accommodation even if the employee cannot perform the essential functions of the job with the accommodation for a temporary period of time—defined as 40 weeks—unless it poses an undue hardship. This is just a snapshot of some of the PWFA rules.
Federal law also requires accommodation for nursing mothers who wish to express milk during working hours. The PWFA requires accommodation related to lactation and nursing beyond what the PUMP for Nursing Mothers Act requires. In addition to federal law governing reasonable accommodations and lactation breaks, there are state and local laws. Some state laws require pump breaks to be paid.
In the religious accommodation context, the U.S. Supreme Court has made it considerably more difficult to establish an undue hardship. In Groff v. DeJoy, the court tossed the longstanding standard that an employer merely had to show a de minimis cost and replaced it with a requirement that employers show that the accommodation poses a substantial burden in the overall context of the employer’s business, taking into account the accommodations at issue and their impact in light of the nature, size, and operating costs of the employer. If the employer cannot provide the religious accommodation requested, it must explore alternative accommodations that do not impose an undue hardship. In short, whether under the ADA or Title VII, the bigger the employer, the more difficult it is to argue an accommodation poses an undue hardship.
Practical Steps for Navigating Requests
In assessing accommodation requests, consider the following suggestions:
- Make sure you understand which laws apply to each request. Beyond federal law, state or local laws could apply simultaneously and provide greater protection or impose different requirements—especially as to what information to ask for related to accommodation requests.
- For requests for additional breaks and time off of any kind, always determine whether Family and Medical Leave Act or other state or local paid time off laws apply.
- Make sure your policies, process, and accommodation request forms and medical questionnaires are up-to-date and vetted by employment law counsel.
- Include U.S. Genetic Information Nondiscrimination Act safe harbor language where appropriate in your forms.
- Ensure all employee medical information is kept confidential and in a separate file.
- Ensure your staffing agreements require your client to indemnify you if they fail to comply with applicable laws.
- Develop a reliable way to keep up-to-date on all the leave laws that apply at the state and local level.
- Consider providing refresher training to your HR professionals and leave managers on how to handle leave and accommodation requests.
- Partner with your client. When requests arise, work with them to make sure that all relevant information is gathered and considered as part of the interactive process and that good decisions are made for everyone’s benefit.
Key Takeaways
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ADA claims now outpace race and sex discrimination claims, making accommodation a top compliance risk.
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Employers must provide a reasonable accommodation—not necessarily the requested accommodation.
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Beyond the ADA, laws like Title VII, the PWFA, and the PUMP Act also include accommodation obligations.
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Undue hardship is hard to prove—especially for larger employers.
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Staffing firms must partner with clients, update policies, and stay ahead of changing laws.
