Employee’s Obligation to Request Reasonable Accommodation
The employee’s request for a reasonable accommodation triggers the employer’s duty to engage in the ADA’s interactive process. See EEOC v. C.R. England, Inc., 644 F.3d 1028, 1049 (10th Cir. 2011). “Before an employer’s duty to provide reasonable accommodations—or even to participate in the ‘interactive process’—is triggered under the ADA, the employee must make an adequate request, thereby putting the employer on notice.” Id. While the employee’s notice or request for reasonable accommodation does not have to be in writing, be made by the employee, or formally invoke the magic words “reasonable accommodation,” it “nonetheless must make clear that the employee wants assistance for his or her disability.” Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313 (3d Cir. 1999).
However, the employer’s mere awareness of an employee’s disability is not sufficient to trigger the employer’s duty under the ADA to engage in the interactive process. “More is required to trigger an employer’s duty to engage in the interactive process than mere awareness that the employee is disabled; specifically, the employee must make an adequate request for a reasonable accommodation for the disability.” Dinse v. Carlisle Foodservice Prods., Inc.¸ 2013 U.S. App. LEXIS 22513; 28 Am. Disabilities Cas. (BNA) 1634 (10th Cir. 2013).
While an employer may certainly inquire whether an employee needs an accommodation before an employee has made an adequate request, the employer is under no legal oblation to do so absent such an employee request. See 29 C.F.R. pt. 1630 app. § 1630.9. To be adequate, the request must be sufficiently direct and specific, giving notice that the employee needs a special accommodation. C.R. England, 644 F.3d at 1049 (citing Calero-Cerezo v. United States DOJ, 355 F.3d 6, 23 (1st Cir. 2004)). In the Dinse case, the employee walked with a cane, was visibly in pain at work, and frequently requested leave to see several physicians and to attend physical therapy. Despite Dinse’s obvious condition, the court specifically rejected Dinse’s argument that the employer had a duty to anticipate his need for a request, stating “[i]t is not the employer’s responsibility to anticipate the employee’s needs and affirmatively offer accommodation.” Dinse, 2013 U.S. App. LEXIS 22513, at *15 (citing Koessel v. Sublette Cnty. Sheriff’s Dep’t, 717 F.3d 736, 745 (10th Cir. 2013)).
Determining the Appropriate Reasonable Accommodation
Once the employee has requested provision of a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation. The appropriate reasonable accommodation is determined through the interactive process that involves both the employer and the employee. Although the process is described in terms of accommodations that enable the employee to perform the essential functions of the position held or desired, it is equally applicable to accommodations involving the job-application process and to accommodations that enable the employee to enjoy equal benefits and privileges of employment. 29 C.F.R. pt. 1630 app. § 1630.9.
Once the employee with a disability has requested a reasonable accommodation to assist in the performance of a job, the employer, using a problem-solving approach, should take the following steps:
- Analyze the particular job involved and determine its purpose and essential functions;
- Consult with the individual with a disability to ascertain the precise job-related limitations imposed by the individual’s disability and how those limitations could be overcome with a reasonable accommodation;
- In consultation with the individual to be accommodated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position; and
- Consider the preference of the individual to be accommodated and select and implement the accommodation that is most appropriate for both the employee and the employer.
See 29 C.F.R. pt. 1630 app. § 1630.9.
Examples of reasonable accommodations may include job restructuring, modified equipment, changing the work schedule, modifying job responsibilities, or transferring the employee to a vacant position with different responsibilities. See 29 C.F.R. § 1630.2(o);Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 870 (6th Cir. 2007). If consultation with the employee does not reveal potential appropriate accommodations, then the employer, as part of the interactive process, may seek technical assistance from the Equal Employment Opportunity Commission (EEOC), from state or local rehabilitation agencies, or from disability-constituent agencies. 29 C.F.R. pt. 1630 app. § 1630.9.
Once potential accommodations have been identified, the employer should assess the effectiveness of each potential accommodation in assisting the employee to perform the essential functions of the position. If more than one of these accommodations would enable the employee to perform the essential functions, the employee’s preference should be given primary consideration. Id. However, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide.
Employer’s Obligation to Participate in Good Faith
Participating in a good-faith interactive process is a mandatory requirement under the ADA. Employers who fail to participate in the interactive process in good faith will be liable for failing to provide a reasonable accommodation. See Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1112 (9th Cir. 2000), rev’d on other grounds, 535 U.S. 391, 122 S. Ct. 1516, 152 L. Ed. 2d 589 (2002). While the employer’s obligation to engage in the interactive process is mandatory, the failure to engage in the interactive process is only an independent violation of the ADA if the plaintiff establishes a prima facie showing that he or she proposed a reasonable accommodation. See Keith v. Cnty. of Oakland, 703 F.3d 918, 929 (6th Cir. 2013); Breitfelder v. Leis, 151 F. App’x 379, 386 (6th Cir. 2005).
Courts have identified several situations that may indicate a failure to participate in the interactive process in good faith. For example, failing to discuss a reasonable accommodation in a meeting in which the employer takes an adverse employment action against an injured employee may demonstrate a lack of good faith. EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 622 (5th Cir. 2009). Similarly, failing to assist an employee in seeking an accommodation may suggest bad faith. Canny v. Dr. Pepper/Seven-Up Bottling Grp., Inc., 439 F.3d 894, 902 (8th Cir. 2006). Also, courts have found that a cursory medical examination and summary conclusion that a disabled individual is not fit for employment violates an employer’s duty to engage in the interactive process in good faith.See Keith, 703 F.3d at 924.
An employer is not required to provide an accommodation that would impose an undue hardship on the operation of the employer’s business. The “undue hardship” provision takes into account the financial realities of the particular employer or other covered entity. However, the concept of undue hardship is not limited to financial difficulty. “Undue hardship” refers to any accommodation that would be unduly costly, extensive, substantial, or disruptive, or that would fundamentally alter the nature or operation of the business. See29 C.F.R. pt. 1630 app. § 1630.2(p).
The ADA regulations provide the example of an individual, with a visual impairment that makes it difficult to see in dim lighting, who applies for a position as a waiter in a nightclub and requests that the club be brightly lit as a reasonable accommodation. Although the individual may be able to perform the job in bright lighting, the nightclub will probably be able to demonstrate that this particular accommodation, though inexpensive, would impose an undue hardship if the bright lighting would destroy the ambience of the nightclub or make it difficult for the customers to see the stage show. Id.
Another exception to the employer’s duty to provide a reasonable accommodation is in the case of a “direct threat.” A “direct threat” is defined as a significant risk of substantial harm to the health or safety of the individual or others, which cannot be eliminated by reasonable accommodation. 29 C.F.R. § 1630.2(r). An employer may require that an individual not pose a direct threat to the health or safety of himself or herself or others. If an individual poses a direct threat as a result of a disability, the employer must determine whether a reasonable accommodation would either eliminate the risk or reduce it to an acceptable level. If no accommodation exists that would either eliminate or reduce the risk, the employer may refuse to hire the applicant or discharge the employee who poses a direct threat.
The risk can be considered only when it poses a significant risk, i.e., a high probability, of substantial harm. A speculative or remote risk is insufficient. See 29 C.F.R. pt. 1630 app. § 1630.2(r). For example, generalized fears about risks to individuals with disabilities in the event of an evacuation or other emergency cannot be used by an employer to disqualify an individual with a disability.
Best Practices for Employers
The employer should have a clear policy on the ADA’s interactive process and the employer and employee’s duty to communicate in good faith regarding reasonable accommodations under the ADA. In addition, managers should be trained on the policy and on how to recognize an employee’s accommodation request. Because there is no requirement that the employee use the magic language “reasonable accommodation” in making a request, examples of statements that constitute an accommodation request should be provided. The EEOC provides the example of a new employee in a wheelchair informing her employer that her wheelchair cannot fit under the desk in her office. Though the employee does not explicitly request an accommodation, the employee’s statement places the employer on sufficient notice that a request is being made.
Because analysis of the particular job and a determination of its purpose and essential functions are required under the ADA’s interactive process, job descriptions should be complete and up-to-date. The employer should ascertain whether all essential functions of the job have been accurately described in the job description. Job descriptions should be reviewed and updated on a regular basis.
Once an employer is on notice that a request for accommodation has been made, the employer should arrange to meet personally with the employee to discuss possible accommodations. At the meeting, the employer should listen to the employee and solicit potential solutions that would allow the employee to complete the essential functions of the job. The employer should also offer potential solutions. As with all employment and human-resources matters, it is a best practice to document all conversations and all steps taken to work toward an acceptable accommodation.
Once the employer and employee arrive at a reasonable accommodation, it should be implemented, and the dialogue concerning the accommodation should continue. The employee should be informed that the employee should inform the employer if the accommodation is unsuccessful or if modifications should be made. If one accommodation is unsuccessful, the parties should continue to work toward an acceptable accommodation that meets both the needs of the employer and the employee.
Communication, creativity, and effort are essential in navigating the ADA’s interactive process. Employers should remember that the ADA’s interactive process is mandatory, and they should be familiar with all of its requirements. As always, it is not enough simply to have a carefully considered written policy; the policy must be communicated, readily accessible, and followed by both the employer and the employee.
Keywords: litigation, employment law, labor relations, Americans with Disabilities Act, reasonable accommodation, interactive process
Kathleen M.W. Schoen is with Tilford Dobbins Alexander, PLLC, in Louisville, Kentucky.