Employment & Labor Insider

The Americans with Disabilities Act is approaching its silver anniversary (it was enacted in 1990 but didn't start taking effect until 1992). After 25 years, most employers know to address disability-related reasonable accommodations in their handbooks or other policies.

Based on my own experience, the quality of these disability accommodation policies . . . varies. Sometimes the policy is nothing more than an aside in the employer’s general equal employment opportunity policy. For (fictional) example:

"Gargle does not discriminate on the basis of race, sex, national origin, religion, color, age, disability, or genetic information, and provides reasonable accommodations for employees who are qualified individuals with disabilities."

Not ideal, but at least it’s there.

Many employers have stronger disability accommodation policies. They may give examples of reasonable accommodations and even tell employees whom to contact if they want to request accommodation and what they can expect once a request is made.

Wow, really?

Really!

But even an ideal disability accommodation policy is not enough for our current times.

For the past few years, I’ve been recommending that employers have a standalone “reasonable accommodation policy” as part of, or in addition to, their general EEO policy.

The "Fab Four"

A good reasonable accommodation policy for our modern era should address each of the following:

No. 1: Accommodations for employees with disabilities.

No. 2: Accommodations for employees who are pregnant or who have pregnancy-related conditions.

No. 3: Accommodations for nursing mothers, who need to express milk during the work day.

No. 4: Accommodations for employees with religious needs.

And those are just under federal law. You may need to cover other accommodations based on applicable state or local laws.

I’ll talk about each of these four separately, but in all cases your policy should (1) explain generally when the accommodation might apply, (2) provide some examples, and (3) tell employees how to make a request. This last should include the job title of the contact and, ideally, that contact’s phone number and email address (or a link). 

Also, wherever you accept job applications, you should offer disability- and pregnancy-related accommodations to applicants and provide the contact information (or link) to allow them to make such requests. Lactation and religious accommodations may not be big issues during the hiring process.

No. 1: Disabilities. If you have a “bare minimum” disability accommodation policy, now is a good time to beef it up as described above.

In addition to accommodating bona fide ADA disabilities, many employers make reasonable accommodations for medical conditions that aren't technically "disabilities." This is a good thing! For example, they might accommodate employees with short-term limitations from workers’ compensation injuries. And they might even accommodate employees with limitations that are not disabilities and not work-related (“I broke my leg skiing. I'll be fine in six weeks, but in the meantime I will be a little slower getting around.")

Your policy should say that the accommodation chosen will depend on the employee’s condition and limitations, and the requirements of the particular job. Examples of accommodations could include are remote work, altering or waiving lifting requirements, adjusting work schedules, temporary reassignment to a different position (which should be the second-to-last resort unless the employee prefers it), and medical leave (last resort unless the employee prefers it).

No. 2: Pregnancy. Pregnancy accommodations are similar to disability accommodations, but not identical. Normal pregnancy is not a “disability” within the meaning of the ADA, in large part because it's a relatively short-term condition. (That said, some pregnancy-related medical conditions are significant enough to be ADA-qualifying disabilities.)

During the Biden Administration, the Equal Employment Opportunity Commission liberally defined “pregnancy-related conditions” that had to be accommodated. In addition to the nine-or-so months of actual gestation and the postpartum period, it also included fertility treatments, miscarriage and stillbirth, elective abortion, and roughly a year postpartum rather than the “standard” six-weeks-and-maybe-more-if-she-had-a-C-section. The Trump EEOC may not agree with its predecessor about elective abortion, but apart from that, it appears to be taking a similarly pro-employee position on pregnancy accommodation.

Examples of pregnancy-related accommodations to include in your policy might include altering or waiving lifting requirements, providing a seat for an employee in a standing job, excusing absences for morning sickness or prenatal care, and of course providing maternity leave in the case of childbirth, or medical leave in the case of a miscarriage or stillbirth.

No. 3: Lactation. Generally, under federal law, employers are required to allow nursing employees to take breaks as needed to express milk. If the employee is non-exempt under the Fair Labor Standards Act, the break time can be unpaid unless the employee performs work during the “break” (in which case, it isn’t a break, duh). For example, an employee working from home may be able to turn her video camera off and handle a conference call while expressing milk. Even if she’s on-site, she may be answering emails or reviewing work-related materials while on her lactation “break.” So watch out for that. (Exempt employees have to be paid no matter what.)

In addition to providing the time, the employer is required to provide a private space, and a space for safe storage of the milk.

Again, these are the requirements under federal law. Make sure you are also complying with any applicable state or local laws that cover (1) paid breaks, and/or (2) lactation accommodation.

From a pure “policy” standpoint, a good lactation accommodation policy can generally be a couple of sentences.

No. 4: Religion. Finally, employers should include a short section addressing religious accommodations, just so employees know they have that option if they need it. Something like this should suffice:

Dapple will also attempt to reasonably accommodate an employee who has a sincerely held religious belief that conflicts with a work-related requirement. Possible accommodations could include schedule adjustments, or adjustments to dress or grooming standards that are not required for safety reasons.

How-to

As far as the mechanics of the reasonable accommodation policy are concerned, I’d have a standalone “Reasonable Accommodation” policy that immediately follows the EEO policy, or make it a prominent subsection of the EEO policy. And reasonable accommodation should be included in the Table of Contents or index. Just so employees can find it easily.

Presumably, in most companies, the contact person for all reasonable accommodation requests would be the same Human Resources representative. If so, you should be able to provide a single contact at the end for all four types of accommodations.

The interactive process

You knew I was going to say this. The policy should include a statement (applicable to all four types of accommodations) about the interactive process. The statement should say that if the requested accommodation can't be granted, HR (or whoever) will discuss other options with the employee and will try to arrive at an accommodation that will work for everybody.

A word about retaliation . . .

If your anti-retaliation policy doesn’t already address it, be sure you include something to the effect that retaliation against any applicant or employee for making a good-faith reasonable accommodation request is strictly prohibited.

On to the important stuff

Now let’s talk about what really matters. Are you Team Kelly, Team Art of Play, or Team Molly the $15MM Mechanical Bird?