Reasonable Accommodation and the Interactive Process: A Guide for Employers

A team member tells you a back problem is making the lifting part of their job hard. Another mentions that morning sickness is making it tough to start on time. Do you have to change anything? What can you ask, and what should you write down? If you run a small business in Colorado, these are fair questions, and the answers come from a handful of federal and Colorado laws on reasonable accommodation.

I wrote this guide for owners and managers, from the employer's side of the desk. It covers disability and pregnancy under the federal Americans with Disabilities Act (ADA) and Pregnant Workers Fairness Act (PWFA) and under Colorado's own laws. It also walks through the interactive process, which simply means that you and the team member communicate, by talking or some other way, about the limitation and the change needed at work.

What reasonable accommodation means

A reasonable accommodation is a change at work that lets someone with a disability, or with a limitation related to pregnancy or childbirth, apply for a job, do its essential functions or enjoy the same benefits as everyone else. The U.S. Equal Employment Opportunity Commission (EEOC), the federal agency that enforces these laws, describes accommodations as changes in the work environment or the way things are usually done at work.

Many accommodations are ordinary adjustments that are easy to make. Federal and Colorado guidance give examples like these:

• Schedule changes: shorter hours, part-time work, a later start time or another modified schedule.
• Breaks: more frequent or longer breaks, including restroom, food and water breaks.
• Equipment and seating: a stool to sit on, a way to work while standing, or equipment that's bought or modified.
• Changes to the work itself: job restructuring, limits on lifting, help with manual labor, light duty if available, or a temporary transfer to a less strenuous or hazardous position.
• Policy changes: letting someone keep a water bottle or food nearby, changing a uniform or dress code, or modifying a leave policy.
• Time away and location: telework, leave for health care appointments, or leave to recover from childbirth.
• Reassignment: under the ADA, moving someone to a vacant position.

The word "reasonable" sets some limits. Under the ADA, you don't have to eliminate an essential function of the job or lower a production standard that applies to everyone, and you don't have to provide personal items like eyeglasses or hearing aids that someone also needs off the job. The PWFA works a little differently: a pregnant team member who is temporarily unable to do one or more essential functions may still be able to get light duty or changed assignments as an accommodation.

Who is covered

This is where Colorado law reaches further than federal law, so it's worth getting straight before a request lands on your desk.

The federal laws

The ADA's employment rules apply to employers with 15 or more employees, and so does the PWFA, which took effect on June 27, 2023. For these federal laws, part-time, seasonal and temporary employees all count toward your headcount, while independent contractors and other non-employees don't. To be covered, a business needs 15 or more employees for every workday in at least 20 calendar weeks of the current or the previous year.

Colorado law

Colorado's anti-discrimination law has no headcount minimum. It defines an employer as every person employing people in the state, with a narrow exception for some religious organizations. The Colorado Civil Rights Division says any employee working in Colorado is covered by the Colorado Anti-Discrimination Act. Under Colorado law, employers have a duty to provide reasonable accommodations for disability and for pregnancy, childbirth and related conditions.

Colorado's pregnancy accommodation law shares its name with the federal one: it's also called the Pregnant Workers Fairness Act, and it took effect on August 10, 2016. It requires employers to provide reasonable accommodations for health conditions related to pregnancy or the physical recovery from childbirth, unless the accommodation would impose an undue hardship, and to engage in a timely, good-faith, interactive process when someone asks.

If you have 15 or more employees, the federal and Colorado laws both apply to you. Where the two differ, you meet whichever rule asks more of you. If you have fewer than 15, the federal laws generally don't reach you, but Colorado's law still does. For the other Colorado rules that apply from your first hire, see my Colorado employment law guide.

Who can ask

Accommodations are for qualified applicants and team members, meaning people who can do the essential functions of the job with or without an accommodation. Under the ADA, a person has a disability if they have a physical or mental impairment that substantially limits one or more major life activities, have a history or record of one, or are perceived as having one. Colorado's anti-discrimination law gives disability the same meaning as the ADA does.

Pregnancy itself isn't a disability under the ADA, so the pregnancy laws fill that gap. Under the PWFA, pregnancy, childbirth or related medical conditions include uncomplicated pregnancies, miscarriage, postpartum depression and lactation, and a limitation can be minor or come and go, like migraines or morning sickness.

The interactive process, step by step

The interactive process is often less formal than it sounds. The EEOC expects that many pregnancy-related accommodations can be granted after simple exchanges such as brief conversations or emails. You do need to respond in good time, though. Colorado's pregnancy law requires the process to be timely and in good faith, and under the ADA, unnecessary delays can be a violation on their own.

Step one: Recognize the request

A request doesn't have to be in writing, and the team member doesn't need to mention the ADA or use the words "reasonable accommodation." It's enough for someone to tell you, in plain English, that they need an adjustment or change at work for a reason related to a medical condition, and the PWFA works the same way for pregnancy-related limitations. A family member, friend or health professional can also ask on the team member's behalf.

Front-line supervisors may be particularly likely to hear these requests, and the EEOC recommends training them on how to respond. A comment like "I'm having trouble getting to work on time because of my treatments" counts, so make sure your managers know to pass it on to you rather than treat it as an attendance problem.

Step two: Acknowledge it and talk it through

Respond promptly, even if it's only to say you've received the request and will follow up. You can confirm the request in a short memo or letter, or ask the team member to fill out a form, as long as you don't ignore the original request while the paperwork catches up. After that, sit down together and work out what the limitation is, which parts of the job it affects and what might help.

You're allowed to ask relevant questions that help you make an informed decision, including what type of accommodation is needed. The team member may well suggest an accommodation based on their own life or work experience, and that's a good place to start. Have the job description in front of you as well, since the EEOC treats a written job description prepared before advertising or interviewing as evidence of which functions are essential.

Step three: Ask for documentation only when you need it

For a disability, when the disability or the need for an accommodation isn't obvious, you can ask for reasonable documentation, limited to what's needed to show that the person has a disability and needs the accommodation.

Pregnancy-related requests follow different rules. Colorado's pregnancy law lets you require a note from a licensed health care provider before providing an accommodation. If you have 15 or more employees, the federal PWFA applies as well, and it says asking for documentation isn't reasonable when:

• The need is obvious: for example, a visibly pregnant team member who asks for a bigger uniform.
• You already know: the team member has already given you enough information about the limitation and the change they need.
• It's a basic pregnancy need: breaks for the bathroom or to eat or drink, carrying water, or sitting or standing.
• It's for lactation: changes so someone can pump at work or nurse during work hours.
• You wouldn't normally ask: your usual policy wouldn't call for a note in that situation.

When a note is allowed under the PWFA, it's limited to confirming the condition, confirming that it's related to pregnancy or childbirth, and describing the change needed at work. You also can't require an exam by a health care provider you choose. Whatever you receive, keep it confidential and in a separate medical file, not the regular personnel file.

Step four: Decide on an accommodation that works

You don't have to give the exact accommodation someone asks for. You can choose among reasonable accommodations as long as the one you choose is effective, and you can suggest alternatives as part of the conversation. Under Colorado's pregnancy law, you can't make someone accept an accommodation they didn't ask for or don't need, and the PWFA similarly bars requiring an accommodation that wasn't arrived at through the interactive process. Both laws say you can't require someone to take leave if another reasonable accommodation would let them keep working.

Tell the team member what you've decided and when it starts. If you're offering something other than what they asked for, explain why, in writing, and keep the tone the same as any other conversation about their work.

Step five: Follow up

Expect an accommodation to change over time. The EEOC notes that a worker may need different accommodations as a pregnancy progresses, during recovery from childbirth, or as a condition improves or gets worse. Check in after a few weeks to make sure the change is working, and treat a new or changed request as the start of a new conversation.

What your managers need to know

Asking for an accommodation is protected. The Colorado Civil Rights Division says people who request a reasonable accommodation are protected from retaliation, and the PWFA bars punishing or retaliating against someone for requesting or using one. Colorado's pregnancy law also prohibits denying employment opportunities to someone because they need an accommodation.

Managers also need to protect privacy. The ADA prohibits disclosing medical information to coworkers, except in limited situations, so a manager shouldn't explain why someone has a different schedule or a stool at the register. If a coworker asks, the EEOC suggests pointing to the business's policy of helping any team member who has difficulties at work. It's much easier to get right when you write that expectation down, for example in your code of conduct, and walk managers through it.

Undue hardship

You don't have to provide an accommodation that would cause an undue hardship, which the ADA, the PWFA and Colorado's pregnancy law all describe as significant difficulty or expense. It's judged against your business specifically. The EEOC's guidance says generalized conclusions won't do, and the decision has to rest on an individualized look at current circumstances.

The factors that go into the decision include:

• The accommodation itself: its nature and cost.
• Your resources: the overall financial resources of your business.
• Your size: the overall size of your business and the number of people who work at the location.
• The impact: the effect on your expenses, resources and operations.

Undue hardship covers more than money. Under the ADA, it also covers accommodations that would be unduly extensive, substantial or disruptive, or that would fundamentally change the nature or operation of the business.

Colorado's pregnancy law adds two practical points. If you've already provided a similar accommodation to other groups of team members, the law presumes, unless you can show otherwise, that it isn't an undue hardship. An accommodation also isn't considered reasonable if it would require you to hire someone you wouldn't otherwise have hired, fire someone, transfer a team member with more seniority, promote someone who isn't qualified for the new job, create a new position, or give paid leave beyond what similarly situated team members get. Light duty is the exception: the law doesn't excuse you from creating a light-duty position if you would provide one for another equivalent team member.

When one option is an undue hardship, keep the conversation going. Under the ADA, the EEOC says you must try to identify another accommodation that won't pose a hardship, and if cost is the problem, you must also give the team member the chance to provide the accommodation or pay for the part that's the hardship. Before you say no for undue hardship, get an employment attorney's view; I'll work with one on your behalf, so you're not handling it alone.

Documenting the process

Good records protect everyone involved. They show that you took the request seriously, looked at options and acted in good faith, and they help you remember what was agreed when needs change months later. Colorado's pregnancy law gives good faith real weight. Under that law, a court can't award punitive damages on a pregnancy accommodation claim when the employer demonstrated good-faith efforts to comply.

For each request, write down:

• The request: the date, who it came from, who received it, and what was asked for, in the team member's own words.
• Each conversation: the date, who took part, the options discussed and any information you asked for.
• Documentation: what you asked for and why, and what you received, stored in the separate medical file.
• The decision: what you put in place, the start date and, if you chose a different option from the one requested, the reason.
• Any denial: the specific undue hardship reasons, the facts behind them and the alternatives you offered.
• Follow-ups: each check-in, any change, and when the accommodation ended.

Keep the notes factual and brief. Write what was said and decided rather than opinions about the person or their condition, and keep anything medical out of the regular personnel file.

How long to keep the records

Under EEOC rules, employers covered by the federal anti-discrimination laws must keep employment records, including records of requests for reasonable accommodation, for one year from the making of the record or the personnel action involved, whichever is later, and if a charge is filed, until it's resolved. My HR & Payroll Record Retention Toolkit has a retention schedule with the general federal and Colorado requirement and my recommendation for each type of record, plus an employee personnel file checklist showing which records should live in a separate, confidential file.

Colorado's pregnancy accommodation notice

Colorado's pregnancy law also comes with a notice requirement. You need to post the notice in a conspicuous area of the workplace and give it in writing to new hires at the start of employment, and the state labor department publishes a notice for employers to use.

If you'd like help putting this in place, policy creation and leave policy development are part of HR Foundations & Compliance, and I review handbooks at least once a year and any time a law or your business changes. When a request comes in, coaching managers through employee situations and helping with the documentation are part of HR Operations Support, and through Employee Relations & Engagement I draft the actual communications for you, based on your business. Whenever you're ready to contact me, it starts with a conversation.