5 reasonable accommodations an employer almost never has to make

Last week, I posted about five ADA reasonable accommodations that employers never dreamed they would have to make. This week is the happy antithesis to that -- five ADA accommodations that an employer almost never has to make. As with last week's post, every one of these is 100% guaranteed true.

1. Create a job. It's always tempting, but you are not required under the ADA to create a job to accommodate an employee with a disability. What's more, it's a bad idea to do it because you may be creating a precedent that will cause you problems later on.

2. Displace another employee to make a spot for an employee with a disability. You never, ever, ever have to let an employee with a disability "bump" a non-disabled employee out of a job. Well, ok. If you have a bumping policy and the two employees qualify under the terms of the policy, then maybe you do. But usually not. And if Herman, the non-disabled employee, is more senior than Michelle, the disabled employee, you don't have to violate your collective bargaining agreement or bona fide seniority policy by giving Michelle priority over Herman.

3. Reduce your bona fide productivity requirements. If you require the employees at your pin factory to make 20,000 "Mrs. Bieber" pins a day, and if Mary can't do that because of a disability, then you don't have to reduce Mary's productivity requirement as a reasonable accommodation. However, you have to be careful about this because a lot of employers have productivity requirements that they don't enforce. Maybe the boss's nephew gets away with making only 15,000 "Mrs. Bieber" pins a day. If so, you might have to adjust your productivity standards to accommodate Mary's disability, but if you are consistent, then you should be good.

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4. Make accommodations that require you to have ESP. (That's a relief.) If Joe's disability is not obvious and he hasn't said anything to you about it, then it's Joe's problem, not yours. If Joe wants a reasonable accommodation, he is responsible for telling you about his condition and providing any necessary medical documentation, as well as participating in "the interactive process." (Of course, the employer is also responsible for participating in the interactive process once it becomes aware of the need for a reasonable accommodation.)

5. The bestest, most disruptivest, most expensivest accommodation option if cheaper, easier ones will still be effective. The EEOC says that the employer is always expected to ask for the employee's feedback about which accommodation he or she prefers, and the employer is always required to give the employee's preference first consideration. BUT the employer is not required to adopt the employee's preferred "Escalade" accommodation if a "Saturn Vue" accommodation would be effective. "Effective" means that it allows the employee to perform the essential functions of the job.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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