Reasonable accommodation at work in PR: Act 44 and the ADA

Two statutes at once, and it pays to know which says what

In Puerto Rico, a person with a disability who is seeking or holding a job is covered by two frameworks running in parallel: **Act 44 of 1985**, the local statute prohibiting discrimination on the basis of physical, mental or sensory impairment, reaching public and private employers; and the **ADA**, the federal Americans with Disabilities Act, whose Title I lives in **Chapter 126 of Title 42 of the United States Code**.

This guide rests on the **ADA text**, which we could verify line by line, because it carries the operative definitions: what a reasonable accommodation is, how undue hardship is measured, and what may be asked in an interview. **Act 44's text could not be obtained** from the Office of Management and Budget's Virtual Library (several paths were tried and all returned 404) so what is said about it here stays general and should be confirmed with the **Office of the Ombudsman for Persons with Disabilities (OPPI)**, the agency for this subject.

That honesty has a practical consequence in your favor: when two statutes cover the same ground, **the one that gives you more applies**. If local law gives you something the ADA does not, that stands; and vice versa.

One ADA fact almost nobody mentions and that decides whether it covers you: **§ 12111(5)(A)** defines «employer» as one **having 15 or more employees for each working day in each of 20 or more calendar weeks** in the current or preceding year. Below that threshold the ADA does not apply, and that is where local law and the rest of Puerto Rico's framework make the difference. That same subsection excludes from «employer» **the United States**, corporations wholly owned by it, Indian tribes, and bona fide private membership clubs exempt under section 501(c).

«Qualified individual»: the definition that decides everything

The ADA's whole protection turns on one phrase in **§ 12111(8)**: **a «qualified individual» is someone who, with or without reasonable accommodation, can perform the essential functions of the employment position that individual holds or desires**.

Read it slowly, because there are two traps. First: **«with or without reasonable accommodation»**. You are not asked whether you can do the job as it is set up today; you are asked whether you can do it **with the adjustment**. Second: **«essential functions»**, not all functions. A marginal task appearing in the description does not disqualify you.

And who decides which are essential? The same paragraph says: **consideration shall be given to the employer's judgment** as to which functions are essential, **and if the employer has prepared a written description before advertising or interviewing applicants, this description shall be considered evidence of the essential functions of the job**.

There is a concrete action there almost nobody takes: **ask for the written job description**, and keep it. If the description published before your interview does not mention the task they later screen you out on, the statute itself gives that paper evidentiary weight.

What a reasonable accommodation is, per the statute's own list

**§ 12111(9)** does not leave the term floating: it says what a reasonable accommodation **may include**. This is the list, and it is worth bringing it written to the meeting with Human Resources:

• **Making existing facilities** used by employees **readily accessible to and usable by** individuals with disabilities.
• **Job restructuring.**
• **Part-time or modified work schedules.**
• **Reassignment to a vacant position.** This is the one that surprises most: the accommodation may be moving you to another open position, and it is in the text.
• **Acquisition or modification of equipment or devices.**
• **Appropriate adjustment or modification of examinations, training materials or policies.**
• **Provision of qualified readers or interpreters.**
• **And other similar accommodations** for individuals with disabilities, the list is not closed.

Not giving it to you is, by itself, discrimination

This is not an interpretation: it is in the definition of discrimination in **§ 12112(b)(5)(A)**. Discrimination includes **not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless the covered entity can demonstrate that the accommodation would impose an undue hardship** on the operation of its business.

Note **«can demonstrate»**: the burden of proving undue hardship is the employer's. It is not on you to prove it is easy.

And subsection **(B)** closes the door next to it, the one most used in practice: it is also discrimination to **deny employment opportunities to a qualified applicant or employee if that denial is based on the entity's need to make a reasonable accommodation** to their impairments. Translated: «we are not hiring you because something would have to be adjusted» is exactly what the law forbids.

**§ 12112(b)(6)** adds another form: using **qualification standards, employment tests or other selection criteria that screen out or tend to screen out** people with disabilities, **unless the criterion is shown to be job-related for the position and consistent with business necessity**.

And **(b)(7)**, which almost nobody cites, requires **administering tests in the most effective manner** so that, when given to someone with a disability impairing sensory, manual or speaking skills, **the results reflect the skill the test purports to measure and not the impairment**, except, of course, where that skill is precisely what is being measured.

«Undue hardship» has four factors, not an opinion

When an employer says an accommodation «is too expensive» or «is not viable», the law has a concrete yardstick and it should be demanded. **§ 12111(10)(A)** defines **undue hardship** as **an action requiring significant difficulty or expense**, considered **in light of the factors in subparagraph (B)**.

And those factors are four, written out:

• **The nature and cost** of the accommodation needed.
• **The overall financial resources of the facility or facilities** involved in providing the accommodation; **the number of persons employed** at that facility; and the effect on expenses and resources, or the accommodation's impact on that facility's operation.
• **The overall financial resources of the entity**; the overall size of the business by number of employees; and **the number, type and location of its facilities**.
• **The type of operation** of the entity, including the composition, structure and functions of its workforce, and the geographic separateness or the administrative or fiscal relationship of the facility to the entity.
• Read them together and the logic shows: **the same accommodation can be an undue hardship for a small business and not for a chain**. That is why the answer cannot be a generic «no»: it has to be tied to these factors.

What they may ask you, and when the rule changes

This is the part with the most precise rules in the whole subject, and it is in **§ 12112(d)**. The statute splits the process into three moments, and in each one something different may be asked.

**Before the offer.** **§ 12112(d)(2)(A)** prohibits a covered entity from **conducting a medical examination or making inquiries of an applicant as to whether they have a disability, or as to the nature or severity of that disability**. But **(2)(B)** clarifies what it may do: **inquiries into the applicant's ability to perform job-related functions**. That is the exact line: ability to do the job, yes; diagnosis, no.

**After the offer and before starting.** **(d)(3)** permits requiring a medical examination and conditioning the offer on its results, **but only if three conditions are met**: that **all entering employees** undergo the examination, regardless of disability; that the information be **collected and maintained on separate forms and in separate medical files and treated as a confidential medical record**; and that **the results be used only in accordance with this statute**.

That confidentiality has **three enumerated exceptions**, and only three: **supervisors and managers** may be informed of **necessary restrictions** on work and of necessary accommodations; **first aid and safety personnel** may be informed, when appropriate, if the disability might require emergency treatment; and **government officials investigating compliance** shall be provided relevant information on request.

**Once employed.** **(d)(4)(A)** prohibits requiring a medical examination of an employee or asking whether they have a disability or as to its nature or severity, **unless the examination or inquiry is shown to be job-related and consistent with business necessity**. **(4)(B)** permits **voluntary medical examinations**, including voluntary medical histories, **that are part of an employee health program** available at that work site, and permits inquiries into the **employee's ability to perform job-related functions**.

Association discrimination: when the disability is not yours

Here is a protection almost nobody knows and that resolves real cases in Puerto Rico, where caring for a relative often falls on the same person who works.

**§ 12112(b)(4)** defines as discrimination **excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association**.

That is: if you are screened out, moved, or denied a benefit **because you care for a child, a parent or a partner with a condition**, that is prohibited by the text itself; even though you have no disability.

An important note so as not to confuse two things: this provision prohibits **discrimination** based on that association. The right to an **accommodation** in order to care for another person is a different question, and in Puerto Rico it is handled through other routes, among them the request for a change of schedule or work location under Article 8 of Act 379, which has its own guide and its own priority for certified caregivers.

How to request the accommodation so it is hard to deny

The statute speaks of **known limitations**: the duty to accommodate is triggered when the employer knows of the limitation. That is why the written request is not a formality but the fact that switches the obligation on. With what you just read, here is how to build it:

• **Describe the functional limitation, not your full diagnosis.** What the employer needs to know is which job function is affected and how, not your medical file.
• **Name the essential function** you want to be able to perform, and **ask for the written job description** if you do not have it: § 12111(8) gives evidentiary weight to the one prepared before advertising or interviewing.
• **Propose the accommodation using the words of the § 12111(9) list**, modified schedule, job restructuring, equipment modification, interpreter, adjustment of a policy, reassignment to a vacant position. Naming it as the statute names it avoids the argument over whether «that counts».
• **Propose more than one alternative.** The employer may offer a different one if it is equally effective; giving options speeds things up and protects you.
• **Log dates and keep a copy of everything**, including proof of delivery. Delay is documented too.
• **If they say no, ask for the denial in writing and ask for the factors.** Undue hardship is measured by the four factors of § 12111(10)(B); a denial that does not mention them is not using the statute's yardstick.

The safety excuse has its own definition

«We can't, it is a safety risk» is a frequent answer, and the ADA defines it so it cannot be used loosely. **§ 12111(3)** says that **«direct threat» means a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation**.

Three pieces in that sentence: the risk must be **significant**, it must be **to others**, and it must be a risk **the accommodation cannot eliminate**. If an adjustment eliminates it, by definition it is not a direct threat.

It is also worth knowing what falls outside the protection: **§ 12111(6)** defines **«illegal use of drugs»** by reference to the Controlled Substances Act, and clarifies that it **does not include the use of a drug taken under the supervision of a licensed health care professional**, nor other uses authorized by that federal law.

Where to file, and what we cannot tell you about deadlines

In Puerto Rico there is more than one door, and it pays to knock knowing what each does.

The **Office of the Ombudsman for Persons with Disabilities (OPPI)** is the local agency for this subject and handles claims, guidance and representation. The **Anti-Discrimination Unit of the Department of Labor** handles employment discrimination complaints. And under the ADA, the federal route is the **EEOC**.

**Here we stop, deliberately.** The filing deadlines in each forum differ from one another and we could not verify them from an official source for this guide. Publishing a wrong deadline in this area is worse than publishing none: whoever reads it could lose their claim relying on it.

What is worth committing to memory: **deadlines are short and run from the incident**, not from when you decide to claim. The first call, the same day something happens, is to the agency, to ask the exact term for your case before anything else.