From the desk of Tracie DeFreitas, M.S., CLMS, Lead Consultant — ADA Specialist
Employers are encouraged to engage in an interactive process to gather information and identify and implement reasonable accommodation solutions that will enable a qualified employee with a disability to successfully perform job functions. While many accommodations are provided long-term, some accommodations may only be needed temporarily. The Americans with Disabilities Act (ADA) does not set a timeframe for the duration of accommodations, whether they be long or short-term so employers are not precluded from implementing trial or short-term solutions as part of the accommodation process. There are many situations where implementing temporary accommodation solutions can lead to successful employment outcomes. After an employee’s limitations have been identified and job functions are understood, this is the time to consider what accommodations might work – even without absolute certainty regarding effectiveness. From a practical standpoint, employers should try to make temporary accommodations, even beyond the requirements of the ADA, because doing so demonstrates an employer's good faith effort to accommodate. Situations that may warrant provision of a temporary accommodation may include, but are not limited to:
- While an employer is researching a permanent accommodation solution;
- As a way of testing an accommodation when the employee/employer isn’t sure it’s going to work;
- When the medical impairment is temporary, but sufficiently severe to entitle the employee to an accommodation; or
- When an accommodation can be provided at this time, but the employer knows it will eventually pose an undue hardship.
a. Temporary Accommodations While Researching a Permanent Solution
At the beginning stage of the interactive process, it may be necessary to research accommodation solutions, including products or services that may be needed to enable the employee with the disability to perform job functions. Sometimes the solution is not readily available, a piece of equipment needs to be purchased, a service must be arranged, or a vacant position is not available. In these kinds of situations, a temporary solution may need to be implemented until the long-term solution is identified or becomes available. For example, if an employee cannot perform an essential function of a job and requests an accommodation that requires some research, the employer can consider temporarily removing the essential function until a permanent accommodation can be made. If an employer chooses to do this, the employer should make clear to the employee that the interim accommodation is temporary and for what duration the accommodation is feasible. Under the ADA, essential functions are never required to be removed permanently.
b. Temporary Accommodations To Check For Effectiveness
Sometimes employers, and employees alike, are apprehensive about the effectiveness of an accommodation. This apprehension may affect the decision to implement an accommodation. JAN Consultants talk to employers who are afraid to try an accommodation because they think that if they try it out they will be locked into the situation forever. However, this isn’t the case – employers are free to try accommodations and stop them if they do not work. When testing accommodations, make a written agreement with the employee that the accommodation is being tested, how long the test will be, and what will happen if the accommodation doesn’t work. That way, no one is surprised when the accommodation is revisited down the road.
c. Temporary Accommodations
At JAN, we often hear from employers wondering if employees with temporary impairments are entitled to reasonable accommodation under the ADA. The answer to this question is not necessarily clear-cut. Per the ADA Amendments Act (ADAAA) of 2008, the definition of disability is now interpreted differently than under the original ADA. Whereas a temporary impairment was generally not considered a disability in the past, now it is made clear that the effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of the ADAAA. Thus, employees with temporary impairments can be eligible to receive accommodation in some cases. The key is whether the impairment is sufficiently severe.
In the case of a temporary impairment, clearly the accommodation will be temporary as well. For example, there are many situations where temporary light duty may need to be considered due to significant limitations in lifting. One of the more frequent examples of this is in the case of pregnancy. It is common to have a 20-30 lb. lifting restriction due to pregnancy. In high-risk situations, the restriction can be even greater. Assuming a temporary arrangement is available and does not pose a hardship, employers can consider restructuring job duties or providing light duty to an employee who is pregnant and unable to lift for a temporary period. After recovering from child birth, the employee can be expected to return to her normal duties. In this type of situation, a temporary accommodation allows an employee to continue working while managing limitations, and enables the employer to retain a worker, avoiding the expense of hiring a new employee. While an average pregnancy is typically not considered a disability under the ADA, impairments arising out of, or impairments exacerbated by pregnancy, can rise to the level of a disability – warranting accommodation under the ADA. Also, some state laws require covered employers to accommodate pregnant workers.
d. Temporary Accommodations That Will Cause Undue Hardship in the Future
Another situation when a temporary accommodation may make sense is when an accommodation can be provided now, but the employer knows it will eventually pose an undue hardship. For example, a part-time or flexible schedule may be reasonable now, but as business and staffing needs change this accommodation could become something that is no longer reasonable to allow. It is alright to provide an accommodation now knowing that it cannot be a long-term solution due to the likelihood of undue hardship. An individual receiving an accommodation is not necessarily entitled to receive it forever. However, it is important to document and communicate to the employee that the accommodation is intended as a short-term solution, and that alternative effective solutions may need to be explored if/when undue hardship results.
Documenting Temporary Accommodations
Documenting accommodation efforts is always an essential part of the interactive process. When a temporary solution is implemented, it should be documented just as any other accommodation. If the employer uses a reasonable accommodation approval form, the form might include information regarding temporary accommodations. For example, the form might include the following types of questions:
- Is the accommodation being provided on a trial/temporary basis? If yes, why?
- When will the trial/temporary period end?
- What action will be taken at the end of the trial/temporary period?
- JAN offers an example of this type of form.
If an approval letter is more the employer’s style of response, here is some sample language to consider including in the body of the letter:
This letter serves to inform you that your request for [list accommodation(s)], requested on [date], has been approved on a temporary basis and will be in effect until [date]. We are providing this accommodation on a temporary basis [for XYZ reason(s)]. At the completion of the temporary/trial time period, the accommodation will be reviewed to determine [if it is still needed/if it is effective/can continue to be provided without posing an undue hardship/alternative or additional accommodations are necessary.]
Overall, temporary accommodations can be beneficial for employers and employees alike. Temporary accommodations can offer an employer time to research other accommodations, can provide an opportunity to test the effectiveness of an accommodation, and can keep workers productive instead of out on a leave of absence – which is good for an employer’s bottom-line. Employers are not penalized for going beyond the requirements of the ADA, and by providing temporary accommodations can demonstrate good faith in the interactive process.