From the desk of Linda Carter Batiste, J.D., Principal Consultant/Legislative Specialist
Under the Americans with Disabilities Act (ADA), covered employers must consider providing accommodations for applicants and employees with disabilities upon request. To help come up with effective accommodations, employers should engage in an interactive process with employees. But what about applicants? Should the same process be used when an applicant requests an accommodation? In general the answer is yes, but with a few recommended modifications to streamline the process; employers typically want the hiring process to move quickly and therefore accommodations need to be in place as quickly as possible. The following discusses some possible modifications to the interactive process using the steps from JAN’s sample interactive process.
Step 1: Requesting an Accommodation
In general, it’s the applicant who must start the accommodation process by requesting an accommodation, but an applicant may not know how to make a request. To overcome this problem, employers may want to include a short statement with job announcements, on application forms, and on interview letters. The statement can be as simple as:
“If you require reasonable accommodation in completing an application, interviewing, completing any pre-employment testing, or otherwise participating in the employee selection process, please direct your inquiries to…”
To help avoid delays, employers may want to appoint someone to handle accommodation requests as quickly as possible for the hiring process. There should be more than one way to contact that person, for example both a phone number and email address. And there should be a backup plan for times when that person is not available.
Even when employers provide information about how to request an accommodation, there will be times when an applicant shows up for an interview and then makes an accommodation request. When this happens, employers still need to try to provide the accommodation so interviewers should be trained how to handle this type of situation or who to contact for assistance.
Step 2: Gathering Information
Whenever an applicant requests an accommodation for the application process, the employer has the right to require medical documentation in the same way allowed for employee accommodation requests. However, there often isn’t a lot of time to get accommodations in place for the hiring process so some employers prefer not to wait for formal medical documentation. In addition, many employers prefer not to have a lot of medical information about an applicant to help avoid the possibility that it will affect their decision making. As a result, many employers opt to streamline this step. For example, some employers don’t require any medical documentation at the application stage. Instead, they just talk with the applicant about what is needed and why. Or if medical documentation is needed, employers might require less documentation than they would for an employee requesting accommodations on the job.
Steps 3, 4, and 5: Exploring, Choosing, and Implementing Accommodations
Under the ADA, employers get to explore and choose among effective accommodation options. However, for the hiring process, many employers opt to provide an applicant’s preferred accommodation when possible, which basically allows then to condense steps 3 and 4. In addition, step 5 (implementing the accommodation) should also be faster – if the applicant is already familiar with the accommodation, he may be able to provide suggestions for getting the accommodation in place and he won’t have to learn a new way of doing things in time to complete the hiring process.
Step 6: Monitoring the Accommodation
Under the ADA, employers must keep all medical information confidential, but can inform supervisors and managers about accommodations on a need to know basis. Some of the supervisors or managers involved in the hiring process may need to know about the accommodation in order to monitor it, make sure it’s effective, and make quick adjustments if needed. That doesn’t mean they necessarily need to know the applicant’s disability or limitations; they should only be provided with the information that is necessary to effectively accommodate the applicant.
Example: An applicant discloses that she uses a service animal and would like to bring it to the interview. Rather than requesting medical documentation, the employer decides to just ask the applicant a few questions about where the service animal will be during the interview so the employer can make sure there is appropriate space in the interview room.
Example: An applicant discloses that he has autism and requests to have a job coach at the interview. The employer asks him what role the job coach will play in the interview and whether he knows where to get a job coach. The applicant indicates that the job coach will be helping him with his social skills and volunteers to bring his own job coach. The employer approves the request without getting medical documentation.
Example: An applicant shows up for the pre-employment testing and finds out there will be multiple people taking the test in the same room. The applicant discloses that she has ADHD and asks to take the test in a private room. The employer is able to locate a room and goes ahead and provides the accommodation. In the future, the employer decides to describe the testing environment on the appointment letter sent to applicants.
Example: An applicant discloses that he will need an interpreter for the interview. The employer treats this as an obvious disability and does not ask for medical documentation.
Another Important Issue:
One question employers often have is whether they can ask applicants questions about accommodations that might be needed on the job. Obviously, if an applicant asks for accommodations for the hiring process, an employer might think that the same accommodation will be needed on the job. The following addresses this issue:
Does an employer have to provide a reasonable accommodation to an applicant with a disability even if it believes that it will be unable to provide this individual with a reasonable accommodation on the job?
Yes. An employer must provide a reasonable accommodation to a qualified applicant with a disability that will enable the individual to have an equal opportunity to participate in the application process and to be considered for a job (unless it can show undue hardship). Thus, individuals with disabilities who meet initial requirements to be considered for a job should not be excluded from the application process because the employer speculates, based on a request for reasonable accommodation for the application process, that it will be unable to provide the individual with reasonable accommodation to perform the job. In many instances, employers will be unable to determine whether an individual needs reasonable accommodation to perform a job based solely on a request for accommodation during the application process. And even if an individual will need reasonable accommodation to perform the job, it may not be the same type or degree of accommodation that is needed for the application process. Thus, an employer should assess the need for accommodations for the application process separately from those that may be needed to perform the job.
May an employer ask applicants whether they will need reasonable accommodation to perform the functions of the job?
In general, an employer may not ask questions on an application or in an interview about whether an applicant will need reasonable accommodation for a job. This is because these questions are likely to elicit whether the applicant has a disability (generally, only people who have disabilities will need reasonable accommodations).
However, when an employer could reasonably believe that an applicant will need reasonable accommodation to perform the functions of the job, the employer may ask that applicant certain limited questions. Specifically, the employer may ask whether s/he needs reasonable accommodation and what type of reasonable accommodation would be needed to perform the functions of the job. The employer could ask these questions if:
- the employer reasonably believes the applicant will need reasonable accommodation because of an obvious disability;
- the employer reasonably believes the applicant will need reasonable accommodation because of a hidden disability that the applicant has voluntarily disclosed to the employer; or
- an applicant has voluntarily disclosed to the employer that s/he needs reasonable accommodation to perform the job.
For more suggestions related to the hiring process, see the JAN Toolkit drawer “Tools for Recruiters and Hiring Managers.”