Americans with Disabilities Act: Guidance for Employers on Reasonable Accommodations and Undue Hardship

By: Betsy Johnson, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

This article provides guidance for employers on providing reasonable accommodations for disabled employees pursuant to Title I of the Americans with Disabilities Act of 1990 (ADA) and amendments to it by the ADA Amendments Act of 2008 (ADAAA).¹

THE ADA AFFIRMATIVELY REQUIRES EMPLOYERS TO MAKE reasonable accommodations to the known limitations of employees or applicants, provided that the accommodation does not pose an undue hardship on the operation of the business of the employer.²

The ADA does not require employers to adopt a reasonable accommodation policy, but employers should nevertheless adopt one to help ensure that they treat all employees and applicants in a consistent and legally compliant manner.

Request for Accommodations

As a general rule, the employer does not have an obligation to engage in the interactive process or accommodate a disability until the employee requests an accommodation.³ An employee does not need to use any magic words to request an accommodation and it suffices if the employee tells the employer that he or she needs an adjustment or change at work due to a medical condition.

An exception to the general rule exists for certain mental disabilities. Specifically, where the employee has a mental impairment and cannot understand the impact of his or her noticeable behavior, then the ADA does not require the employee to request an accommodation to trigger the employer’s obligation to start the interactive process. In such a circumstance, if the employer notices that the employee has difficulty performing the essential functions of the job, then the employer should initiate the interactive process.⁴

Additionally, in some cases, employees do not even need to request an accommodation where the disability is obvious to the employer.⁵ Outside of the context of the illegal use of drugs or alcohol, if the employer believes that an employee’s poor job performance results from a disability, the employer may wish to ask the employee if he or she needs an accommodation.⁶

Once an employer knows of an individual’s need for an accommodation, the employer must engage in an interactive process to attempt to identify an appropriate accommodation.

Determining Whether the Employee Has a Covered Disability

When considering employer and employee rights and obligations under the ADA, the employer must first assess whether the employee has a “covered” disability under the ADA that may qualify for a reasonable accommodation under the ADA. As stated above, you must broadly interpret the phrase “substantially limits a major life activity” in your assessment. “Major life activity” includes most anything that an employee does at work. Thus, the more cautious approach is to deem the employee to have a covered disability.

Disability-Related Inquiries

“Disability-related inquiries” are questions likely to elicit information about a disability, such as:

• Whether employees have or ever had a disability
• What kinds of prescription medications they are taking
• The results of any medical or genetic tests they have had
• Asking about prior workers’ compensation history
• Asking coworkers, family members, or doctors about an employee’s disability

For job applicants who have not yet received a conditional offer of employment, employers may not ask about the existence, nature, or severity of a disability and may only ask if the applicant can perform the specific job functions under the ADA.7 When an employer makes a conditional offer to a job applicant and prior to the commencement of employment, an employer may make disability-related inquiries if the employer makes the same inquiries to all conditionally-hired individuals for the same position or job category.⁸ For employees, under the ADA, employers may ask disability-related questions only if the inquiries are “job-related and consistent with business necessity.”⁹

Employers may ask employees about their general well-being, whether they can perform job functions, and about their current illegal use of drugs without running afoul of the EEOC’s Guidance.¹⁰

Medical Examinations

A “medical examination” is a test generally administered by a health care professional or in a medical setting that seeks information about a person’s physical or mental impairments or health. Medical examinations include vision tests; blood, urine, and breath analyses; blood pressure screening and cholesterol testing; and diagnostic procedures, such as x-rays, CAT scans, and MRIs.

Job Applicants

The ADA prohibits medical examinations of job applicants who have not yet received a conditional offer of employment, but employers may conduct medical exams on all job applicants to uncover illegal drug use.¹¹ When a job applicant receives a conditional offer of employment, an employer may mandate a medical examination for him or her before he or she begins employment if the employer requires medical examinations for all employees hired for the same position or job category.¹² But “if certain criteria are used to screen out an employee or employees with disabilities as a result of such an examination or inquiry, the exclusionary criteria must be job-related and consistent with business necessity, and performance of the essential job functions cannot be accomplished with reasonable accommodation. . . .”¹³

Employees

An employer can mandate medical examinations for employees if they are “job-related and consistent with business necessity.”¹⁴ Medical examinations qualify as job-related and consistent with business necessity when employers reasonably believe based on objective evidence that employees will be unable to perform the essential functions of their job because of a medical condition or employees will pose a direct threat to themselves or others due to a medical condition.¹⁵

Employers also may obtain medical information about an employee when an employee requests a reasonable accommodation or where an employee’s disability or need for accommodation is not obvious. In addition to permitted medical inquiries and medical examinations, under the ADA, employers may obtain medical certification of the need for leave or extensions of leaves. Where an employer has explained what type of documentation it requires from the employee, and the employee fails to provide the documentation or provides insufficient documentation, the employer may require the employee to see a health care professional of the employer’s choice. Before the employer incurs the additional expense of a separate examination, you should advise the employer to consider asking the employee’s health care provider for additional information.¹⁶

Confidentiality of Information Regarding Disability Inquiries and Medical Examinations

Information obtained during examinations and inquiries should be kept confidential and made available only to appropriate individuals in determining the ability of an applicant or employee’s ability to perform job-related functions.¹⁷ You should encourage employers to redact any identifiable information when consulting with other personnel in making an accommodation determination.

Duty to Engage in an Interactive Process

Once an employee requests an accommodation, the employer must, in good faith, engage in an interactive process that involves communicating with the individual and/or the individual’s health care provider about identifying an appropriate accommodation. Some courts have held that the individual does not need to affirmatively request an accommodation where the employer is aware of the disability and the need for an accommodation.¹⁸ When one or more possible accommodations would suffice, the employer may choose the one that involves the least cost and difficulty. Where the employer has no preference, you should advise the employer to let the employee choose.

The interactive process can raise complex issues regarding what constitutes a proper accommodation. To show that it engaged in the process and good faith, the employer should be prompt and responsive during the course of the interactive process. Additionally, the employer should carefully document its interactions with the employee and its efforts to identify and provide a reasonable accommodation.

An employer is not shielded from liability based on its incorrect belief that no accommodation existed that could enable the employee with a disability to perform the essential functions of the position where the employer fails to engage in a good faith interactive process. Further, an employer should not assume that the only way to accommodate the employee is to eliminate an essential function of the job.¹⁹ Both employers and employees are responsible for determining an appropriate accommodation through their engagement in the interactive process.²⁰ Where an employee is responsible for the breakdown in the interactive process, he or she may not recover for a failure to accommodate.²¹

Courts have held that an employer’s duty to accommodate is a continuing duty that is not necessarily exhausted by one discrete effort.²² A court found that an employer violated the ADA where the employee requested to work from home and the employer failed to explore other alternatives such as a leave of absence before denying her request and terminating the employee.²³ An employer’s obligation to engage in the interactive process extends beyond the first attempt at accommodation and continues where the employer is aware that the initial accommodation is failing and further accommodation is necessary.²⁴

When advising employers about complying with the ADA’s interactive process requirement, you should recommend that they include training on the interactive and reasonable accommodation process in the training that they provide to human resources professionals, managers, and supervisors. Given the complexities of the interactive process, an employer should designate a specified human resources employee or group to handle this process rather than leave it in the hands of individual managers or supervisors.

Determining Whether the Employee Can Perform the Job’s Essential Functions with or without Accommodation

If the employee can perform all of his or her essential job functions—but only with an accommodation for his or her disability—then the employer must explore whether it can accommodate the disability.

Thus, the critical analysis comes down to whether the employee can perform the essential duties of the position, with or without accommodation. Further, if the employee can perform the essential duties with an accommodation, you must evaluate whether the accommodation places an undue hardship on the employer.

The existence of current and accurate job descriptions may prove crucial to determining whether the employee can perform the essential functions of his or her job, and, in turn, whether the employee will need an accommodation. You should advise employers to clearly identify the essential functions of the position. Courts will scrutinize this issue, particularly if there are discrepancies between the supervisor’s and employee’s understanding of which functions are essential to the position. Employers should not rely on written job descriptions alone.

If the employee cannot perform an essential job function—even with an accommodation—the inquiry ends there. The ADA does not require the employer to provide an accommodation in such circumstances.²⁵ However, the employer should engage in the interactive process before determining that the employee cannot perform an essential function even with an accommodation to avoid making an inaccurate assessment.

Accordingly, employers must take the time to carefully evaluate their job descriptions to confirm that the essential functions of the positions are clearly identified. Job descriptions will be an important piece of evidence in establishing that an employee’s proposed accommodation, which would eliminate an essential function of the position, would create an “undue hardship” by altering and disrupting the nature and operations of an employer’s business.

Determining Whether the Accommodation Is Reasonable

Once the employee and employer have identified an effective accommodation, the employer may consider whether the accommodation is reasonable. An oft-litigated issue is the reasonableness of the accommodation provided by the employer. A “reasonable accommodation” allows the individual with the disability to do one of the following:

• Perform essential functions. A reasonable accommodation can be an accommodation that allows the employee to perform the essential functions of the position in a way that enables him or her to enjoy equal employment opportunities, benefits, and privileges of employment.²⁶
• Enjoy equal benefits and privileges of employment. A reasonable accommodation can be an accommodation that allows an employee to “enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.”²⁷
• Meet a qualification standard. Reasonable accommodations can be “modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires.”²⁸ If an applicant or employee cannot meet a specific qualification standard because of a disability (e.g., possessing specific training, licenses or certificates, certain physical or mental abilities, meeting certain health and safety requirements, demonstrating certain attributes such as getting along with others or working under pressure), the ADA requires that the employer demonstrate the importance of the standard. To this end, the employer must show that the qualification standard is job-related and consistent with business necessity.²⁹ If the employer cannot do so, it may not use the standard as a basis to take adverse action against the individual with the disability.

An employer is not required to eliminate or reallocate essential functions of the job or lower production standards. The employer also is not required to provide personal use items such as glasses or hearing aids as an accommodation.

Types of Reasonable Accommodations

The ADA does not require an employer to provide the “best” accommodation possible or the accommodation specifically requested by the individual. Rather, the ADA only requires that the employer provide a reasonable accommodation to an individual who suffers from a disability. The employer has “the ultimate discretion to choose between effective accommodations.”³⁰

The ADA provides that a reasonable accommodation may include “[m]aking existing facilities used by employees readily accessible to and usable by individuals with disabilities” and provides the following illustrative examples of reasonable accommodations:

• Job restructuring
• Part-time or modified work schedules
• Leave of absence
• Reassignment to a vacant position
• Acquisition or modification of equipment or devices
• Appropriate adjustment or modifications of examinations, training materials, or policies
• The provision of qualified readers or interpreters³¹

Each of these reasonable accommodations is addressed below.

Job Restructuring

Where an employee’s disability impacts only a marginal job function, the ADA requires an employer to accommodate the disability. Such accommodation may include having another employee perform the marginal function by way of reassignment. Mere inconvenience does not constitute a defense to the failure to accommodate a marginal job function.

While the employer is not required to lower quality or production standards to make an accommodation, the ADA may require an employer to provide a reasonable accommodation to assist an employee in meeting a specific production standard. In that regard, you should advise the employer to give all employees clear guidance regarding the quality and quantity of work they must produce.

Job restructuring may also involve considering telework as a reasonable accommodation. For more information on telework as a reasonable accommodation, see the section below entitled “Is Telecommuting a Reasonable Accommodation?”

Modifying Work Schedules

Absent undue hardship, employers must adjust work hours and break periods, and alter when employees must perform certain functions as part of a response to a reasonable accommodation request. Employers must also consider offering part-time schedules even where they do not provide such schedules for other employees or have a policy against it. Employers should thoroughly assess the impact on their operations before determining whether these adjustments would cause undue hardship. If an undue hardship exists, employers must consider reassignment to a position in which the employee would be able to work the hours needed.³²

The following are examples of accommodations involving modifications to work schedules:

• Employers may be required to make reasonable shift changes to accommodate a disabled employee’s disability-related difficulties in getting to work. A federal appellate court held that a shift change is a type of reasonable accommodation as it is a change to a workplace condition that is entirely within an employer’s control and would allow the employee to get to work and perform the job.³³
• Employers may be required to accommodate a disability-related problem outside of the workplace that influences an employee’s ability to perform the essential functions of her job while at work. Another federal appellate court held that the employer violated the ADA when it did not make shift changes for an employee with severe insomnia that rendered her unable to perform the essential functions of her job while at work when there was evidence that doing so could have alleviated her insomnia.³⁴
• Employers may be required to modify the work schedule by violating a strict tardiness policy when punctuality is not an essential function of the position. An employee’s disability caused him to be occasionally late to work and requested to make up the lost time by working through breaks or working overtime. The employer recently implemented a strict punctuality policy and denied the accommodation claiming that punctuality was an essential function of the job. The employer’s duty may hinge on whether the employee’s timely presence was an essential function.³⁵

Leave as a Reasonable Accommodation

For detailed information on leave under the ADA, including a discussion of when leave can be deemed a reasonable accommodation, see the discussion in the full practice note Americans with Disabilities Act: Guidance for Employers.

Reassignment to a Vacant Position

Employers have an affirmative obligation to consider reassignment as an option where no other accommodations are available that would allow the individual to perform the essential functions of the job, or if the accommodation would cause an undue hardship on the employer. An employer cannot simply refer the employee to the company website for jobs. Requiring an employee to compete for a vacant position is not an accommodation, because all persons are free to apply for and compete for positions. In such cases, employers must place the employee in a vacant position for which the employee qualifies without requiring competition with other applicants.³⁶ The reassignment should be to an equivalent position as to pay, status, and other terms of employment.³⁷ Reassignment to a position with reduced pay, benefits, seniority, or other terms of employment, where a comparable position is available, does not constitute reasonable accommodation.³⁸ The employer may consider positions that would constitute a demotion if equivalent positions are not available.³⁹

An employer is not required to create a vacant position for the purpose of reassignment or reassign the employee to a position that would constitute a promotion.⁴⁰ The ADA also does not require reassignment where it would contravene the employer’s fundamental policies underlying legitimate business interests or bump another employee who occupies the position.⁴¹ The employee bears the burden of showing that a vacant position existed to which he or she was qualified and could have been reassigned.⁴²

Appropriate Adjustment or Modifications of Examinations, Training Materials, or Policies

Employers that implement and administer tests must do so in the most effective manner to ensure that the test accurately reflects the skills, aptitude, competency, or other factors the test purports to measure, rather than reflecting the sensory, manual, or speaking-related disability of that individual. This does not apply to examinations that purport to measure sensory, manual, or speaking skills.⁴³

While a temporary job coach to assist in job training to a qualified individual may be a reasonable accommodation, an employer is not required to provide a permanent job coach to assist in the performance of the essential functions.⁴⁴

Employers must also provide accommodations so that employees may attend and participate in training programs. Accommodations may include providing written materials in alternative formats, such as braille, large print, or on audio, and providing interpreters. This applies whether it is an in-house training, provided by outside entities, or off the employer’s premises, and even where the training is optional.⁴⁵

Employers may also be required to modify policies as an accommodation. For example, an employer may have to modify a dress code for employees with disabilities that make it difficult for the employee to fully comply with the dress code.⁴⁶ Similarly, employers may also be required to modify work schedules in violation of a strict punctuality policy to accommodate the employee’s disability.⁴⁷

Examples of Unreasonable Accommodations

The following are examples where courts have found requested accommodations to be unreasonable:

• Request to change a supervisor is presumed to be unreasonable. There is a presumption that it is unreasonable to request a change in supervisor, although this must be evaluated on a case-by-case basis. The burden of overcoming this presumption lies with the employee. The employee bears the burden of identifying a reasonable accommodation, in which the cost does not clearly exceed the benefits.⁴⁸
• Request to have no contact with coworkers or supervisor is unreasonable. A federal appellate court found that an employee’s request to work from home for two months with no direct contact with supervisors and no contact with coworkers was unreasonable.⁴⁹ Another federal appellate court found that employee’s request for transfer away from coworkers causing prolonged and inordinate stress was unreasonable.⁵⁰
• Eliminating an essential function of the job is not reasonable. For example, a permanent lifting restriction that would require other employees to assist the employee with her lifting duties was not reasonable since it would require other employees to perform the employee’s essential functions in addition to their own.⁵¹
• Request to accommodate a nonessential function is unreasonable. Although it is admirable that an employee may want to perform a function that is not required for her position, a federal appellate court held that the ADA does not require an employer to accommodate the employee to allow her to perform any nonessential function that she chooses.⁵²
• Request for fragrance-free work environment is unreasonable. An employee’s request to implement a broad fragrance-free workplace policy was found to be objectively unreasonable.⁵³ In another case, the court held that an employee’s extreme sensitivity to perfume and other fragrances, although it may temporarily restrict her ability to breathe and see, did not constitute a disability under the ADA.⁵⁴
• Request for an accommodation that would violate a collectively bargained seniority system is unreasonable and not required. A federal appellate court upheld the employer’s denial of an employee’s request to be relieved from mandatory overtime as it would have infringed on the seniority rights of other employees and exposed the employer to grievances and potential liability under the collective bargaining agreement.⁵⁵

Is Telecommuting a Reasonable Accommodation?

An employer may be required to consider telecommuting—also known as telework, teleworking, or remote work—as a reasonable accommodation where the employee’s disability prevents the employee from successfully performing the job at the workplace and the functions can be performed at home without undue hardship. While many jobs will continue to require physical presence, with technological advances, physical presence in the workplace may become less necessary. The employee may consider variations of telecommuting only to the extent that the disability necessitates it. The employer may consider factors such as the employer’s ability to supervise the employee or whether the employee can perform the duties off-site or if he or she requires equipment or tools that cannot be provided or accessed at the employee’s home.⁵⁶ As courts consider different factors in determining the feasibility of telecommuting as an accommodation, decisions have varied.

Cases Holding That Telecommuting May Be a Reasonable Accommodation

In some cases, courts have found that telecommuting may be a reasonable accommodation:

• Working at home can be a reasonable accommodation if the employee can perform the essential functions at home without posing an undue hardship.⁵⁷ The court denied summary judgment where a transcriptionist with attendance issues, caused by her obsessive compulsive disorder, requested telecommuting as a reasonable accommodation to be more productive.⁵⁸ Although the employer allowed some transcriptionists to work from home, it denied her request because of her disciplinary record due to her disability-induced tardiness and absenteeism and because when the employee was at work, she met her productivity requirements.⁵⁹ The court relied on the EEOC’s guidance and found that a reasonable jury could conclude that the employee could perform the essential functions of the job in this case.⁶⁰
• Summary judgment denied where an employee asserted that she could fulfill all essential functions and had successfully done so while telecommuting.⁶¹ The employee was a program assistant who performed most of her work on the computer and telephone; her job generally did not require her to meet with her coworkers, except when she was training incoming employees.⁶² The court found that there was a genuine issue of material fact regarding the essential functions of the employee’s job and whether she could perform them from home.⁶³

Cases Holding That Telecommuting Was Not a Reasonable Accommodation Request

The following are examples where courts have found requests to telecommuting to be unreasonable:

• Telecommuting is not a reasonable accommodation where regular, in-person attendance is an essential job function.⁶⁴ The court found that an employee’s request to telecommute up to four days a week was unreasonable where the employee’s resale buyer job required teamwork, meetings, and on-site availability to participate in face-to-face interactions.⁶⁵
• Software engineer’s request for telecommuting was unreasonable because her duties of monitoring contractors and answering questions required her presence in the workplace.⁶⁶ The court also considered that the employee performed her essential functions exceedingly well without accommodations.⁶⁷
• IT specialist’s request to work from home was unreasonable where the employee could not establish that he would perform all the essential duties from his home.⁶⁸ The employee further acknowledged that even if the court granted the accommodation, there may be days that he would not be able to perform his duties from home due to his condition, thereby suggesting that he was not otherwise qualified to perform the essential functions of the job.⁶⁹

Undue Hardship

Employers do not have to make a reasonable accommodation for the employee if the reasonable accommodation would cause an undue hardship on the operations of the employer’s business.⁷⁰ Undue hardship means an action requiring significant difficulty or expense when considered in light of factors such as:

• The nature and cost of the accommodation
• The facility’s financial resources
• The entire company’s financial resources
• The structure and main functions of the company –and–
• The impact of the accommodation upon the facility’s operations and ability to conduct business⁷¹

No hard and fast rules govern when an accommodation creates an undue hardship; instead, employers must handle each request on a case-by-case basis. What does and does not create an undue hardship constitutes a question of fact. When weighed against these factors, a large company may find it more difficult to argue that the cost of accommodation imposes an undue financial burden or show undue hardship in reallocating nominal tasks of the disabled employees to other employees.

Employers should be cautious when denying an accommodation based on its financial impact on the employer. An undue hardship defense must show that the accommodation imposes a significant expense when considered against the multiple factors, including not only the financial resources of the facility, but of the entire covered entity.⁷² The employer cannot rely solely on the excessive cost of the accommodation, but should be prepared to demonstrate the actual impact against the entity’s budget.

Example. In Searls v. Johns Hopkins Hospital, a hospital retracted a job offer to a hearing-impaired nurse who requested an accommodation of a sign language interpreter.⁷³ The full-time salary was assessed to be approximately $120,000, or 0.007% of the entity’s overall operational budget. The court rejected the hospital’s argument that it had no money in its budget for reasonable accommodations and would therefore need to lay off two nurses to provide the accommodation. The court also rejected the hospital’s argument that the interpreter’s salary was twice the salary of a nurse.⁷⁴ The court found that in light of the $1.7 billion budget of the greater entity, the hospital was unable to demonstrate how the actual cost could impose an undue hardship on the hospital.

To read the complete practice note on guidance for employers related to the ADA in Lexis Practice Advisor, please go to Labor & Employment > Attendance, Leaves, and Disabilities > The ADA and Disability Management > Practice Notes.

Betsy Johnson is a shareholder at the Los Angeles office of Ogletree Deakins. She provides day-to-day advice and counsel to her clients on a broad spectrum of employment and labor relations issues, including state and federal wage and hour, employee compensation, employee leaves of absence, discrimination and harassment, performance management, and discipline and termination. Ms. Johnson assists employers in developing, drafting, and implementing personnel policies and procedures and developing strategies for managing disability and employee leave of absence issues. She assists and represents employers in negotiating collective bargaining agreements and in grievance and arbitration proceedings.

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Related Content

1. 42 U.S.C.S. § 12101 et seq. 2. 42 U.S.C.S. § 12112(b)(5). 3. See, e.g., Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 135 (2d Cir. 2008). 4. See, e.g., Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1114 (9th Cir. 2000) (en banc), vacated on other grounds, US Airways, Inc. v. Barnett, 535 U.S. 391 (2002). 5. See, e.g., Brady, 531 F.3d 135 (the ADA “speaks of accommodating ‘known’ disabilities, not just disabilities for which accommodation has been requested”). 6. But see Robin v. ESPO Eng’g Corp., 200 F.3d 1081, 1092 (7th Cir. 2000) (“regretfully recogniz[ing]” that an employer was not required to accommodate an individual that did not request an accommodation). 7. 42 U.S.C.S. § 12112(d)(2)(B). 8. 42 U.S.C.S. § 12112(d)(3). 9. 42 U.S.C.S. § 12112(d)(4)(A). 10. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees (2005). 11. 42 U.S.C.S. § 12112(d)(2); 29 C.F.R. § 1630.3(a). 12. 42 U.S.C.S. § 12112(d)(3); 29 C.F.R. § 1630.14(b). 13. 29 C.F.R. § 1630.14(b)(3). 14. 42 U.S.C.S. § 12112(d)(4)(A). 15. See, e.g., Owusu-Ansah v. Coca-Cola Co., 715 F.3d 1306, 1312–13 (11th Cir. 2013) (upholding an employer’s right to require a medical examination from an employee returning from leave after he made threatening comments in a meeting with his supervisor).16. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees (2005). 17. 42 U.S.C.S. § 12112(d)(4)(C). 18. See, e.g., Colwell v. Rite Aid Corp., 602 F.3d 495, 506–07 (3d Cir. 2010). 19. See, e.g., Parker v. Sony Pictures Entm’t Inc., 260 F.3d 100, 106 (2d Cir. 2001) (affirming its discrimination finding where a disabled employee who was able to perform the essential functions was terminated after not being allowed to return to work due to a denied reasonable accommodation request); Schroeder v. Suffolk County Cmty. College, 2009 U.S. Dist. LEXIS 52533, at *47–48 (E.D.N.Y. June 22, 2009) (while an employer is not required to eliminate an essential function to accommodate, it does not satisfy its reasonable accommodation obligations by assuming that the only way to accommodate is to eliminate an essential function). 20. Schroeder, 2009 U.S. Dist. LEXIS 52533, at *48. 21. See, e.g., Nugent v. St. Luke’s-Roosevelt Hosp. Ctr., 303 Fed. Appx. 943, 945–46 (2d Cir. 2008). 22. See, e.g., Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1138 (9th Cir. 2001); McAlindin v. County of San Diego, 192 F.3d 1226, 1237 (9th Cir. 1999). 23. Humphrey, 239 F.3d at 1128 (dismissing the employer’s argument that the employee failed to request leave as an accommodation). 24. Id. at 1138. 25. See, e.g., Lang v. Wal-Mart Stores East, L.P., 813 F.3d 447, 456 (1st Cir. 2016) (an employer is not required to exempt an employee from an essential job function as an accommodation). 26. See 29 C.F.R. § 1630.2(o)(1)(ii); 29 C.F.R. § 1630.9(d). 27. See 29 C.F.R. § 1630.2(o)(1)(iii). 28. See 29 C.F.R. § 1630.2(o)(1)(i). 29. See 29 C.F.R. § 1630.10. 30. 29 C.F.R. pt. 1630 app. (interpretation of 29 C.F.R. § 1630.9). 31. 42 U.S.C.S § 12111(9). 32. See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (2002). 33. Colwell v. Rite Aid Corp., 602 F.3d 495, 506–07 (3d Cir. 2010). 34. Gile v. United Airlines, Inc., 213 F.3d 365, 374 (7th Cir. 2000). 35. See Earl v. Mervyns, Inc., 207 F.3d 1361, 1366 (11th Cir. 2000), (court found that the employee’s timely presence was an essential function and a request to arrive at work at any time, without reprimand, essentially required the employer to change the essential functions of the job, and thus was not reasonable). 36. See, e.g., EEOC v. United Airlines, Inc., 693 F.3d 760 (7th Cir. 2012); Duvall v. Georgia-Pacific Consumer Prods., L.P., 607 F.3d 1255 (10th Cir. 2010); Huber v. Wal-Mart Stores, Inc., 486 F.3d 480 (8th Cir. 2007). 37. 29 C.F.R. pt. 1630 app. (interpretation of 29 C.F.R. § 1630.2(o)). 38. Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 99 (2d Cir. 1999) (citing Smith v. Midland Brake, Inc., 180 F.3d 1154, 1177 (10th Cir. 1999)). 39. Cassidy v. Detroit Edison Co., 138 F.3d 629, 634 (6th Cir. 1998). 40. Duvall, 607 F.3d at 1261. 41. Id. 42. See, e.g., Lang v. Wal-Mart Stores East, L.P., 813 F.3d 447, 456 (1st Cir. 2016) (granting summary judgment to the employer where the employee failed to provide more than her testimony that a similar job was available for reassignment at the time of her accommodation request); Francis v. Wyckoff Heights Med. Ctr., 2016 U.S. Dist. LEXIS 42849, at *51 (E.D.N.Y. Mar. 30, 2016); McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92 (2d Cir. 2009). 43. 29 C.F.R. § 1630.11. 44. EEOC v. Hertz Corp., 1998 U.S. Dist. LEXIS 58, at *15 (E.D. Mich. Jan. 6, 1998). 45. See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (2002). 46. See The Americans With Disabilities Act: Applying Performance And Conduct Standards To Employees With Disabilities (Dress Codes). 47. Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1263 (11th Cir. 2007). 48. Kennedy v. Dresser Rand Co., 193 F.3d 120, 122 (2d Cir. 1999) (citation omitted). 49. Theilig v. United Tech Corp., 415 Fed. Appx. 331, 333 (2d Cir. 2011). 50. Gaul v. Lucent Techs., 134 F.3d 576, 579 (3d Cir. 1998). 51. See Griffin v. Prince William Health Sys., 2011 U.S. Dist. LEXIS 45427, at *12–13, 24 (E.D. Va. Apr. 26, 2011) (an employer is not required to provide a permanent light duty if it eliminates an essential function of the job). 52. Hoffman v. Caterpillar, Inc., 256 F.3d 568, 577 (7th Cir. 2001). 53. Core v. Champaign Cty. Bd. of Cty. Comm’rs, 2012 U.S. Dist. LEXIS 149120, at *18 (S.D. Ohio Oct. 17, 2012) (granting summary judgment for an employer that offered to accommodate an employee by banning certain types of fragrances that adversely affected the employee since it is a reasonable accommodation in light of the employee’s known limitations). 54. See Robinson v. Morgan Stanley Dean Witter, 2007 U.S. Dist. LEXIS 64624, at *13–14 (N.D. Ill. Aug. 31, 2007). 55. Kralik v. Durbin, 130 F.3d 76, 83 (3d Cir. 1997). See also Eckles v. CONRAIL, 94 F.3d 1041 (7th Cir. 1996) (the ADA does not require accommodations that would sacrifice the collectively bargained, bona fide seniority rights of other employees). 56. See EEOC Fact Sheet: Work at Home/Telecommuting as a Reasonable Accommodation. 57. Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1132 (9th Cir. 2001). 58. Id. at 1132–33. 59. Id. at 1132. 60. Id. 61. Pinegar v. Shinseki, 665 F. Supp. 2d 487, 502 (M.D. Pa. 2009). 62. Id. at 490–91. 63. Id. at 502–03. 64. EEOC v. Ford Motor Co., 782 F.3d 753, 763 (6th Cir. 2015). 65. Id. 66. Rauen v. United States Tobacco Mfg., 319 F.3d 891, 897 (7th Cir. 2003). 67. Id. 68. Kiburz v. England, 2008 U.S. Dist. LEXIS 55023, at *21 (M.D. Pa. July 16, 2008). 69. Id. at *23. 70. 42 U.S.C.S. § 12112(b)(5)(A). 71. 29 C.F.R. § 1630.2(p). 72. 42 U.S.C.S § 12111(10). 73. 158 F. Supp. 3d 427, 433 (D. Md. 2016). 74. Id. at 439 (citing 29 C.F.R. pt. 1630 app. (interpretation of 29 C.F.R. § 1630.15(d)), which states that simply comparing the cost of accommodation against the individual’s salary will not suffice).