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© 2016 - U.S. Legal Forms, Inc USLegal Guide to Disabled Adults T YPES OF D ISABILITIES Partial Disability: Partial disability is the result of an injury which permanently impairs a person's ability to function, but still allows the person to work or participate in other activities. In worker's compensation cases, an injured worker is often awarded a percentage rating of permanent partial disability, which will entitle him/her to a money settlement. The percentage of disability compensation is often based on a physician's evaluation of what percentage of the person's normal functioning is gone. Some states have a workers' insurance fund in which partial disability benefits are paid when an employee returns to work, or is medically able to perform currently available work as determined by an agreement or a judge's decision, but at wages which are lower than the employee's earnings prior to the injury. Partial disability may mean a person is able to perform one or more, but not all, of the material and substantial duties of their own or any other occupation on a full time or a part time basis; or able to perform all of the material and substantial duties of their own or any other occupation on a part- time basis. Permanent Disability: Permanent disability an injury which impairs the physical and/or mental ability of a person to the extent that they are never again able to resume his/her normal work or non- occupational activities. Permanent disability is that disability or impairment that remains after the employee has reached the point of maximum healing. Under worker's compensation laws, once the condition is stable, a degree of permanent disability is established even if the employee is able to work despite the physical problem. Permanent disability general damages may be awarded in a lawsuit for injury suffered due to the negligence or intentional act of another. Permanent disability ratings are provided under the law in the form of money payments, the amount of which depends on a number of factors, including the injured’s age, occupation, and the extent of disability. The rating can range from 1% to 100% depending on how the permanent disability interferes with the ability to engage in work. A total disability for any type of work carries a 100% rating Total Disability: Total disability is a term used in insurance law to refer to an injury which impairs the physical and/or mental ability of a person to the extent that they are never again able to resume his/her normal work or non- occupational activities. Total disability is that disability or impairment that remains after the employee has reached the point of maximum healing. Under this definition, this means that as long as the insured is unable to perform the duties of his/her own occupation, they will be able to collect full total disability, even if they were working in another occupation and earning income. Some insurers vary the definition of total disability coverage to exclude benefits for those who chose to work in another occupation. Temporary Disability: Temporary disability is defined as a physical or mental disability which hampers your discharging of responsibilities for a short period of time. The federal government passed the Family & Medical Leave Act in 1992 which provides some job protections for persons who must take time off for medical reasons. Employees covered under the law may access the protections if they must take time off due to either their own medical condition or to care for a spouse, child or parent who is seriously ill. Benefits are also available at the birth or adoption of a child. Mental Disability: A mental disability is typically defined as: (1) having a mental or psychological disorder or condition that limits a major life activity, including working; (2) any other mental or psychological disorder or condition that requires special education or related services; (3) having a record or history of a mental or psychological disorder or condition which is known to the employer or other entity covered by this part; or (4) being regarded or treated by the employer as having, or having had, any mental condition that makes achievement of a major life activity difficult. S OCIAL S ECURITY Under the Social Security Act, disability is defined as the inability to engage in any substantial gainful activity due to any medically determinable physical or mental impairment which can result in death or which has lasted or can last for a continuous period not less than 1 year. A MERICANS W ITH D ISABILITIES A CT The Americans with Disabilities Act (ADA) of 1990 is one of the most significant federal laws governing discrimination against persons with disabilities. This Act prohibits discrimination against individuals with disabilities in employment, housing, education, and access to public services. The ADA defines a disability as any of the following: 1. "a physical or mental impairment that substantially limits one or more of the major life activities of the individual." 2. "a record of such impairment." or 3. "being regarded as having such an impairment." While alcoholism is included as a disability, other socially undesirable behaviors, such as pedophilia, or transvestism, compulsive gambling, and pyromania, are excluded from the Act. The ADA requires that reasonable accommodation be made so as to provide individuals with disabilities equal opportunities. Barriers to employment, transportation, public accommodations, public services, and telecommunications for persons with disabilities are prohibited. The Equal Employment Opportunity Commission (EEOC) and the Department of Justice are charged with enforcement of the ADA. States may pass disability statutes so long as they do not conflict with the ADA. President George H. Bush signed the ADA into law on July 26, 1990. The legal structure of the ADA is based on the Civil Rights Act of 1964 and the Rehabilitation Act of 1973. The ADA uses concepts of disability, accessibility, and employment which were introduced in the Architectural Barriers Act of 1968 and the Rehabilitation Act of 1973. These two federal laws were the predecessors of the ADA that mandated a level of accessibility in federally funded buildings and programs. The ADA expanded the requirements of accessibility to the new and existing facilities of privately funded companies for the first time. The ADA consists of five separate parts or titles: Title I relates to employment; Title II concerns public services; Title III pertains to public accommodations and commercial facilities; Title IV refers to telecommunications; and Title V covers miscellaneous other items. Title I of the ADA prohibits discrimination in employment against qualified individuals with disabilities. For companies with 25 or more employees, the requirements became effective on July 26, 1992. For employers with between 15 and 24 workers, the requirements became effective on July 26, 1994. Title II of the ADA prohibits discrimination in programs, services, or activities of public entities (state and local governments), including public transportation operated by public entities. The provisions of Title II which do not involve public transportation became effective on January 26, 1992. Title III, pertaining to public accommodations and commercial facilities, requires that private businesses that are places of "public accommodation"— including restaurants, health clubs, department stores, convenience stores and specialty shops, and hotels and motels—allow individuals with disabilities to participate equally in the goods and services that they offer. This title also requires that all future construction of commercial facilities— including office buildings, factories, and warehouses—and places of public accommodation be constructed so that the building is accessible to individuals with disabilities. Title III also mandates modifications in policies, practices, and procedures. Commercial businesses and places of public accommodation are required to provide auxiliary aids and services, and to make accessible transportation available when transportation services are offered. In addition, companies are required to remove architectural and communications barriers and to comply with ADA in any ongoing or new construction. The Act stipulates that all fixed- route or on-demand transportation services— such as hotel-to-airport and other shuttle services—be accessible to persons in wheelchairs and other disabled individuals. Title IV of the ADA requires telephone companies to make relay services available for persons with hearing and speech impairments. Title V ties the ADA to the Civil Rights Act of 1974 and its amendments. It includes a variety of miscellaneous legal and technical provisions, including one that stipulates that the ADA does not override or limit the remedies, rights, or procedures of any federal, state, or local law which provides greater or equal protection for the rights of individuals with disabilities. The ADA draws an important distinction between the terms "reasonable accommodations" and "readily achievable." For small businesses and other employers, no modifications to their facilities must be undertaken to fulfill the requirements of the ADA until a qualified individual with a disability has been hired. At that point, "reasonable accommodations" must be made unless they impose a significant difficulty or expense. In contrast, the terminology "readily achievable" refers to business obligations to clients or guests and applies to actions that can be accomplished without much difficulty or expense. "Readily achievable" modifications must be made in anticipation of a disabled guest's or client's needs, before he or she ever arrives on the premises. Compliance with the various provisions of the Americans with Disabilities Act also lies with both landlord and tenant, so either or both parties may be held legally liable for violations of the ADA. Assignation of ADA responsibilities is generally made via the lease agreement. Small business owners who lease their office space or other place of business, then, should examine these agreements closely. The fastest-growing area of legal activity relating to the Americans with Disabilities Act concerns mentally disabled employees. Claims that businesses failed to accommodate their employees' psychological problems according to the provisions of the ADA grew rapidly in the late 1990s but stabilized in the early years of the 2000s at around 13 to 14 percent of all ADA claims received by the Equal Employment Opportunity Commission. Under the original language of the ADA, the Act applied a higher standard for legal redress to individuals whose disabilities stemmed from "any mental or psychological disorder." But legislative efforts to eliminate this higher standard have intensified in recent years. Problems associated with mentally disabled employees may include workplace socialization difficulties, limited stamina, irregular attendance, difficulty dealing with stress or criticism, and limited attention spans. But many experts in both the mental health and business fields insist that the mentally disabled can be valuable additions to the workforce if companies provide appropriate accommodations. One valuable tool that business owners and managers can utilize in establishing and maintaining a productive work environment for mentally disabled employees is the EEOC Enforcement Guidance, a comprehensive legal guidebook issued in 1997. As Business Horizons points out, the Guidance stipulates that "traits or behaviors are not, in themselves, mental impairments. This means that stress does not automatically indicate a mental impairment, although it may be a symptom. Similarly, such traits as irritability, chronic lateness, and poor judgment are not, in themselves, mental impairments, although they may be linked to them." Legitimate mental disabilities do, however, include major depression, bipolar disorder, various anxiety disorders, schizophrenia, mental retardation, and special learning disorders. Under the ADA, companies employing mentally disabled individuals are not responsible for every aspect of the employees' behavior. For instance, they are not required to relieve employees of work responsibilities or excuse them from violations of established work policies. Nor are they required to employ workers who are deemed a safety threat. Moreover, employers are not legally responsible for mental disabilities of which they are unaware. But employers are required under ADA law to make "reasonable accommodations" for mentally disabled employees. These may include leaves of absence; minor modifications in work policy, supervision, or job position; or flexible work schedules. "Although the nature or form of accommodation is up to the employer, and is only 'reasonable' if it helps the employee do a better job, in some instances the employer might wish to consider professional assistance in the communication process," wrote Robert Schwartz, Frederick Post, and Jack Simonetti in Business Horizons. "Managers should also verify that the condition qualifies as a psychiatric disability and whether the person can perform the job's essential functions with or without accommodation. Management can request reasonable documentation from a health care professional about the disability and the need for accommodations." Compliance with the ADA's mental disability provisions can help companies retain productive employees and protect themselves from legal peril. But "even beyond mere compliance, socially responsible businesses may elect to embrace these legal mandates as changes that advance the common good of society," noted Schwartz, Post, and Simonetti. "By doing so, they would be helping millions of mentally ill citizens become gainfully employed and saving society billions of government dollars spent supporting the presently unemployed mentally ill. O THER L AWS Other statutes prohibiting discrimination against individuals with disabilities include the Fair Housing Act, Rehabilitation Act, Air Carrier Access Act, and the Individuals with Disabilities Education Act. For example, under the Fair Housing Act, it is unlawful to discriminate in any aspect of selling, renting, or denying housing because of an individual's disability. Owners are further required make some exceptions to their housing policies to enable equal housing opportunities to those with disabilities. The Individuals with Disabilities Education Act requires public schools to make available a free appropriate public education in the least restrictive environment to all eligible children with disabilities, according to their needs. D ISABILITIES AND E DUCATION Section 504 of the Rehabilitation Act of 1973 defines individuals with disabilities as those who have a physical or mental impairment which substantially limits one or more major life activities; has a record of such impairment; or is regarded as having such an impairment. This category includes physiological disorders such as hearing impairment, vision impairment, or speech impairments; neurological disorders such as muscular dystrophy or multiple sclerosis; psychological disorders such as mental retardation, mental illness, or learning disabilities. The legislative definition does not spell out specific illnesses or impairments because of the difficulty of ensuring an all-inclusive list. The deciding factor in determining whether or not a person suffers from a disability under Section 504 is whether the impairment limits one or more major life activities, such as walking, performing manual tasks, seeing, hearing, speaking, breathing, learning and/or working. The ADA defines a disability as a “physical or mental impairment that substantially limits one or more major life activity; a record of such impairment; or being regarded as having such impairment.” The ADA covers obvious impairments such as difficulty in seeing, hearing, or learning, as well as less obvious impairments such as alcoholism, epilepsy, paralysis, mental retardation, and contagious and noncontagious diseases, specifically Acquired Immune Deficiency Syndrome (AIDS). The difference between the two laws, as they apply to educational institutions, is that Section 504 applies to the recipients of grant monies from the federal government, while Title II of the ADA applies only to public entities, with some applications to private sector entities. These entities include nursery, elementary, secondary, undergraduate, or postgraduate schools, or other places of education, day care centers, and gymnasiums or other places of exercise or recreation. Accommodations: Section 504 of the Rehabilitation Act of 1973 and Title II of the ADA cover students in virtually any public school district, college, or university because they receive some form of federal assistance. Some private schools, colleges, and universities also receive such assistance, and students are protected under Section 504, but Title II does not apply to them. Both laws apply to all programs of a school or college, not simply academics. These include extracurricular activities such as band, clubs, or academic teams, as well as athletics and any activity that might occur off campus. Neither law requires that all buildings be made fully accessible to students or teachers with disabilities. Those buildings constructed after the Section 504 regulation was issued in 1977 must be fully accessible. For older buildings, the law requires that the program or activity be made accessible. Often, classes or extracurricular activities are moved to another, more accessible, room to accommodate any disabled person who attends. An interpreter for the hearing-impaired or other types of assistance can be supplied. One aim of the ADA was to make educational institutions more accessible for the disabled. This aim covers “reasonable accommodations” such as the following: ■Modification of application and testing ■Allowing students to tape-record or videotape lectures and classes ■Modification of class schedules ■Extra time allotted between classes ■Notetakers ■Interpreters ■Readers ■Specialized computer equipment ■Special education Accommodation also includes physical changes to an educational institution’s buildings, including the following: ■Installing accessible doorknobs and hard- ware ■Installing grab bars in bathrooms ■Increasing maneuverability in bathrooms for wheelchairs ■Installing sinks and hand dryers within reach ■Creating handicapped parking spaces ■Installing accessible water fountains ■Installing ramps ■Having curb cuts, sidewalks, and entrances that are accessible ■Installing elevators ■Widening door openings Public accommodation is not required if a particular aid or service would result in either fundamental alteration of the services offered or the facility if the accommodation would impose an undue burden. (See Southeastern Community College v. Davis, 442 U.S. 397 (1979)). Under the U.S. Supreme Court’s interpretation, Congress intended that undue burden and hardship must be determined on a case-by-case basis. Testing: Section 309 of the Americans with Disabilities Act fills the gap regarding testing and examination not defined by Section 504 of the Rehabilitation Act of 1973 or Title II of the ADA. Any educational facility that receives federal money or is a public facility because it is a function of the state or local government as defined under Title II of the ADA is required to make any examination accessible to persons with disabilities. This requirement includes physical access to the testing facility, as well as any modification of the way the test is administered to assist the disabled. Modifications may include offering extended time, written instructions, or the assistance of a reader. Many licensing and testing authorities are not covered by Section 504 or Title II. In these cases, a provision in the ADA was included to assure that persons with disabilities are not prohibited from or disallowed in any educational, professional, or other examination opportunity because a test or course is conducted in an inaccessible location or is offered without the needed modifications to assist the disabled student. Modifications may include offering an examination with the assistance of a reader, in a braille or large print format, transcribers, or the proper computer equipment to help the disabled person. Examiners may require proof of disability, but requests for documentation of the disability must be reasonable and must be limited to support for the modification or aid requested. The student or testing applicant may be required to bear the cost of providing such documentation for examination officials. Appropriate documentation would include: ■Letter from physician or psychiatrist or other qualified individual ■Evidence of prior diagnosis ■Evidence of prior accommodation Private and Religious Schools: The ADA covers private elementary and secondary schools as places of public accommodation; i.e., the schools must be physically accessible to those with disabilities. But these schools are not required to provide free appropriate education or develop an individualized educational program for students with disabilities. Any private school that receives federal grant monies or any type of federal assistance would then fall under the Department of Education’s regulations regarding construction and alterations to the private school’s structures and buildings, where it can be conveniently and economically incorporated. Postsecondary Education: Under Section 504, colleges and universities are not required to identify students with disabilities. They are required to inform all applicants of the availability of auxiliary aids, services, and academic adjustments. It is the student’s responsibility to make his or her condition known and to seek out assistance. Individuals with Disabilities Education Act: In addition to the protections offered by the ADA and Section 504, another statute, the Individuals with Disabilities Education Act (IDEA), provides additional protection to those with disabilities in the context of education. The act was originally passed by Congress in 1975 but has been amended on several occasions since that time. The goals of IDEA are as follows: ■It ensures the disabled children are given a “free appropriate public education,” emphasizing special education and related services that meet the specific needs of each disabled child ■It ensures the protection of the rights of disabled children and their parents ■It assists states, local governments, educational service agencies, and federal agencies to provide for the education of disabled children ■It assists states to implement a statewide system of early intervention services for disabled infants and toddlers; it ensures that educators and parents have the necessary tools to improve educational results for disabled children ■It assesses and ensures the effectiveness of efforts to educate disabled children Unlike ADA and Section 504, which are nondiscrimination laws, IDEA is instead a grant program. It requires states that accept federal funds to provide free, appropriate public education to disabled children. Although the means by which IDEA operates differs from the ADA and Section 504, each of these statutes serve similar purposes for the most part. P UBLIC F ACILITY A CCOMMODATIONS Many people think that the Americans with Disabilities Act (ADA) primarily covers workplace accommodations. The only public accommodations they associate with ADA are handicapped parking spaces and Braille numbers on elevator buttons. In fact, the ADA’s public facilities rules, as outlined in Title III of the act, are far more comprehensive than that. All sorts of buildings and businesses fall under Title III: restaurants, schools, office buildings, banks, doctors’ offices, and movie theaters, to name a few. Accommodation can include anything from adjusting store shelves to constructing special ramps and entryways. Some people mistakenly believe that ADA requires businesses to make all sorts of prohibitively expensive changes or else face stiff penalties. The truth is that ADA is designed to benefit the disabled, not to punish business owners. The key to understanding ADA is knowing what is and is not required, as well as what constitutes an acceptable accommodation. The section of ADA that deals with public facilities is Title III. Public accommodations include any building or outdoor space through which any person can enter, with or without a fee. Essentially, that means all buildings except for “private” clubs (any club that requires members to vote to admit an individual) and religious facilities. Among the facilities covered as listed by ADA are the following:  Lodgings (hotels, motels, inns)  Establishments that serve food and drink (restaurants, bars, taverns)  Establishments that offer entertainment (theaters, stadiums)  Places where public gatherings may be held (auditoriums, convention halls)  Sale or rental establishments (retail stores)  Service establishments (medical offices, law offices, funeral parlors)  Places of public display or collection (museums, galleries, public gardens)  Social service centers (homeless shelters, day care centers)  Recreation/exerc ise establishment (golf courses, gymnasiums) It is important to understand not only which facilities are covered under ADA, but also who is considered disabled. Under ADA guidelines, anyone who possesses a physical or mental impairment that significantly limits at least one major life function—for example, the ability to feed oneself, the ability to walk, or the ability to breathe on one’s own. Alcoholics and other substance abusers are also covered if they have been shown to have a history of such abuse. A public accommodation is expected to follow three basic guidelines under Title III of ADA. First, it cannot deny goods or services to a disabled person covered under the legislation. Second, it cannot satisfy its commitment to the legislation by offering benefits that are separate or unequal. Finally, it must offer all services in as integrated a setting as possible. This kind of wording frightens some owners of public facilities. Retail store owners, for example, sometimes fear that Title III compliance means having to make expensive structural changes to their stores or keep people on staff to accommodate all possible disabilities. Would a small company have to install an elevator in its building? Does a restaurant have to make Braille menus and sign-language interpreters available? In fact, ADA’s Title III guidelines do offer a certain degree of leeway for facilities, but that leeway is dependent on a number of factors including cost and a facility’s special needs. E NFORCING THE L AW In the 25-year period from 1976 to 2001, the Access Board investigated more than 3,300 complaints against public facilities, including post offices, military facilities, veterans hospitals federal courthouses, and prisons. In general, the Board works with the facility to find ways to bring it into compliance. One example is the Holocaust Memorial Museum in Washington, D.C. A group of children with varying degrees of hearing impairment were touring the museum when the fire alarm went off. Because the students actually thought the alarms were part of the exhibit, and because they could not hear the evacuation notices, there was potential for serious consequences. A complaint was filed with the Access Board, which worked with the museum to install new alarms that offered a more distinct and distinguishable signal. Another example is a homeless shelter in Phoenix, Arizona. Although rest rooms in the shelter had been renovated twice using federal funds, they were still not ADA compliant. The Access Board worked successfully with the shelter to address the issue and make the rest rooms compliant. Those who feel that a public facility is in violation of Title III may file their complaints with the U.S. Department of Justice. In cases of repeat violations, the Department has authorization to bring lawsuits against offenders, although the more desired outcome would be correction of the problem with the help of groups such as the Access Board. The Department of Justice web site that handles ADA issues is http://www.usdoj.gov/cr t/ada/adahom1.htm. W ORK A CCOMMODATIONS In the United States, approximately 43 million people have physical or mental disabilities or impairments that substantially limit major life activities. In an effort to avoid discrimination against disabled people in the workplace, Congress enacted in July of 1990 the Americans with Disabilities Act (ADA). One way that the ADA seeks to improve employment opportunities for disabled people is by requiring employers under certain circumstances to alter the workplace to accommodate disabilities. These alterations are known as workplace accommodations. Just like individuals of different races, colors, religions, gender, or national origin, individuals with physical or mental disabilities historically have faced discrimination. Disabled people have been excluded from mainstream society, segregated, provided with inferior or unequal services, and denied benefits that non- disabled people enjoy. What is different about the discrimination of disabled people as compared to other types of discrimination is that there is often a rational basis for treating disabled people differently from able- bodied people. Whereas there is usually no rational basis for treating, for example, a woman from South Africa differently from a woman from the United States, there may be a rational basis for treating a woman who is blind differently from a woman with good vision. The visually impaired woman may require the use of Braille, for example. Another difference in disability discrimination is its intent. Many types of discrimination, such as racial discrimination, are rooted in hostility or hatred toward people who are different. But discrimination against disabled individuals more often is rooted in ignorance or apathy. Some people view disabilities with pity or discomfort, leading to behavior that may patronize people with disabilities. Other people simply fail to consider or understand the needs of disabled people, leading to benign neglect or misguided efforts to assist. The U.S. Constitution does little to protect those with mental or physical disabilities from discrimination. Courts historically have not applied the Constitution’s Equal Protection Clause to discrimination of disabled persons with the same level of scrutiny as discrimination of such protected classes as race, religion, and gender. People with disabilities, therefore, had little or no recourse when their disabilities unfairly prevented them from getting suitable jobs. Only two-thirds of employable disabled persons in the United States were employed in the late 1980s, and many of those employed were not working to their full capacity to earn given their disabilities. By 1990, more than 8 million disabled individuals were unemployed and forced to live on welfare and other forms of government assistance. Congress began enacting federal laws in the 1960s designed to protect disabled people, but these laws did not outlaw disability discrimination by employers. Such protections did not enter the workplace until the 1990 passage of the ADA. The ADA prohibits private and state and local government employers, as well as employment agencies and labor unions, from discriminating on the basis of disability. It does not apply to private employers with fewer than 15 employees. The ADA prohibits several specific forms of disability discrimination. One example of an ADA violation occurs when an employer fails to make reasonable accommodations to allow disabled workers to work. R EASONABLE A CCOMMODATIONS The ADA requires employers to make reasonable accommodations to qualified persons with disabilities unless such accommodations would cause an undue hardship to the employer. A disabled person under the ADA is someone who is substantially limited in the ability to perform a major life activity or who has a record of such an impairment or who is regarded as having such an impairment. To be qualified as a disabled person under the ADA, an individual must show an ability to perform all of the essential job functions either with or without a reasonable accommodation. Courts look at mitigating measures in determining whether an individual is disabled. For example, persons who need eyeglasses may be substantially limited in the ability to read, which is a major life activity, unless they wear eyeglasses. Because eyeglasses mitigate their bad vision and allow them to read normally, they are not considered to disabled under the ADA. There are three general types of reasonable accommodations. The first type modifies the job application process to enable qualified job applicants with a disability to be considered for the job they want. The second type modifies the work environment or the manner in which the job is performed to allow disabled individuals to perform the job’s essential functions. The third type modifies the workplace to allow disabled employees equal benefits and privileges as similarly situated employees without disabilities. More specific types of reasonable accommodations may include making an office wheelchair accessible; restructuring jobs; providing part-time or modified work schedules; modifying or purchasing special furniture or equipment; changing employment policies; providing readers or interpreters; and reassigning disabled individuals to vacant positions. An employer is not required to eliminate an essential job function or fundamental duty of the job to accommodate a disabled person. An employer is not required to lower production quotas or standards that apply to all employees, although an employer is required to provide reasonable accommodations to help a disabled individual meet production quotas or standards. An employer is not required to provide disabled employees with personal use items that are necessary both on and off the job, for example, hearing aids. The ADA does not require that reasonable accommodations be made when the accommodations would cause employers an undue hardship. Undue hardship means significant difficulty or expense when compared with the employer’s resources and circumstances. The employer’s financial capabilities are one factor in defining undue hardship, but undue hardship also occurs when the reasonable accommodation would be unduly extensive or disruptive or would fundamentally alter the nature or operation of the business. Courts determine on a case-by- case basis whether a reasonable accommodation would be an undue hardship for the employer. P ROCEDURE Individuals who want a reasonable accommodation must request it but need not mention the ADA or the phrase “reasonable accommodation.” It is sufficient if employees simply ask for an accommodation for a medical reason. Once a request is made, employers are obligated to investigate the request and determine if the requesting employee is qualified as a disabled individual under the ADA. If that determination is positive, then the employer must begin an interactive process with that employee, determining that individual’s needs and identifying the accommodation that should be made. Sometimes this is an easy process with both sides agreeing on the reasonable accommodation. Other times, the interactive process can be complicated and contentious. Sometimes, employers do not know about or understand the disability enough to determine a reasonable accommodation. In these cases, employers are entitled to obtain documentation, such as medical records or a letter from a doctor, to learn about the disability, its functional limitations, and the sort of accommodation that needs to be made. Alternatively, employers may simply ask the requesting employee about the disability and limitations. Unless the disability is obvious, that employee must provide the employer with sufficient information about the disability to help the employer determine a reasonable accommodation. As long as the reasonable accommodation is effective in allowing the disabled individuals to perform their job functions and receive the same benefits as other, non-disabled individuals, then employers have the right to choose among reasonable accommodation options. Employers may choose options that are cheaper or easier to provide, for example. If employers offer disabled employees reasonable accommodations that employees do not want, the employers may not force the employees to accept the accommodations. If, however, the employee’s refusal of the reasonable accommodation results in the individual’s inability to perform the essential functions of the job, the employee may be deemed unqualified for the job. The employer may then be justified in terminating the employee. During the hiring process, employers are not permitted to ask whether job applicants require a reasonable accommodation unless an applicant’s disability is obvious, such as an applicant who uses a wheelchair, or unless the applicant voluntarily informs the employer about the disability. If the employer offers the applicant a job, it is with the condition that the applicant is able to perform the essential job functions either with or without a reasonable accommodation. Once the applicant receives the job offer, the employer may inquire about the necessity of reasonable accommodations. The ADA also mandates that employees with disabilities be permitted to enjoy the same benefits and privileges of employment as non- disabled employees enjoy. Therefore, employers must provide reasonable accommodations to allow the disabled worker to gain access to such privileges as workplace cafeterias or lounges, gyms or health clubs, training programs, credit unions, transportation, or any other perk offered to non-disabled employees. A blind employee, for example, would not be able to read employment related notices placed on bulletin boards. In that case, the employer would have to provide a reasonable accommodation, such as sending that employee telephone messages. T YPES OF R EASONABLE A CCOMMODATIONS An employer may restructure or modify a job as a reasonable accommodation for an employee with a disability. Job restructuring may include reallocating job functions or trading certain job functions that are difficult or impossible for the disabled worker with other job functions of a non-disabled worker. A disabled secretary who cannot climb stairs, for example, may be able to fulfill the essential functions of the job but cannot easily retrieve files from the upstairs storage room. In this case, an appropriate accommodation would be to assign the disabled worker additional filing duties and require an able-bodied co-worker to actually retrieve the files. A disabled worker may be entitled to a paid or unpaid leave of absence from the job as a reasonable accommodation for such reasons as the worker’s need for surgery or other medical treatment, the worker’s recovery from illness related to the disability, or the worker’s education or training related to the disability. An employer does not have to pay the disabled worker during a disability-related leave of absence beyond the employer’s own policy regarding sick pay or vacation pay. The employer is required to hold open the disabled worker’s job during the leave of absence, but the employer may demonstrate that holding open the position for an extended period would constitute an undue hardship. In the event of undue hardship, the employer can fill the disabled worker’s position with another employee but then must try to identify an equivalent position for the disabled worker when the leave of absence ends. Unless doing so would cause an undue hardship to the employer, the employer must allow a disabled worker the option of a modified or part-time work schedule if required by the disability. This may be necessary for individuals who need medical treatment periodically. Another type of job modification involves workplace policies. An employer who prohibits workers from eating or drinking at their workstations may amend that policy for a worker with a disability that requires this worker to eat or drink at specific times of the day. An employer who requires employees to work at the employer’s office rather than at home may alter the policy if a disabled worker can perform the essential job functions from home but cannot perform them at the office. An employer may claim that undue hardship prevents the provision of reasonable accommodations, but undue hardship is not easy to prove. The em- ployer must demonstrate that the specific reasonable accommodation being considered would cause significant difficulty or expense. The determination of undue hardship is made on a case-by-case basis, and courts consider such factors as the type and cost of the accommodation, the financial resources of the employer, the number of employees, and the overall impact of the accommodation on the employer’s operation. An employer cannot claim undue hardship resulting from fears or prejudices about an individual’s disability or fears that an accommodation would result in a morale problem with co- workers. An employer may, however, demonstrate undue hardship if an accommodation would unduly disrupt the work of other employees.