Everyone likes to think of himself or herself as a good communicator, but the Americans with Disabilities Act (ADA) really puts people to the test when it comes to determining and explaining an appropriate reasonable accommodation for a disabled employee. Once an employee suggests he or she needs some type of accommodation due to a disability, the ADA requires employers to engage in an “interactive process” to determine whether a reasonable accommodation can and should be provided. While this sounds simple, it can be—and is often—anything but simple.
Engaging in the interactive process involves a discussion of information that may be very personal and private. Although the process is normally triggered when an employee requests an accommodation, an employer may need to initiate the process when an employee has an obvious disability. The interactive process is not clearly defined, but it really is a conversation between an employee and employer to define (1) what limitations an employee may have as a result of a disability and (2) whether (and, if so, how) the employer can reasonably accommodate those limitations so as to enable the employee to continue performing his or her job. The point of engaging in an interactive process is to “discover a means by which an employee’s disability could have been accommodated.” McBride v. BIC Consumer Prods. Mfg. Co., Inc., 583 F.3d 92, 101 (2d Cir. 2009).
Once given notice of the need for an accommodation, an employer must communicate with the employee and obtain whatever information is necessary to determine whether a suitable accommodation can be provided. The interactive process requires participation from both parties because both possess information relevant to the decision-making process. For instance, only the employee knows what limitations he or she has; in turn, only the employer knows whether a job could be completed in an alternative way or whether there is sufficient staffing to allow for certain types of accommodation.
Courts have generally found that the objectives of the employer engaging in the interactive process are to (1) analyze job functions to establish the essential and nonessential job tasks, (2) identify the barriers to job performance by communicating with the employee to uncover his or her precise physical limitations, and (3) explore the types of accommodations that would be most effective. This does not mean ultimately there will be an effective accommodation, but an employer must engage in the interactive process in order to make this determination. “When an employer does not engage in a good faith interactive process, that employer violates the ADA—including when the employer discharges the employee instead of considering the requested accommodations.” Equal Emp’t Opportunity Comm’n v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 621 (5th Cir. 2009).
The interactive process can be oral or written. That said, the adage “if it is not in writing, it did not happen” applies in this context. For this reason, it is imperative that even when the interactive process is oral, it be memorialized in writing. This is important both for the employee and the employer. It is hard to refute receiving a request for an accommodation when that request is submitted via email. It is equally hard to refute that an employer did not engage in the interactive process when the employer communicated potential accommodations in writing to the employee.
Often, it is the employee that fails to participate in the process. There can be a multitude of reasons for this. Some individuals do not like discussing issues involving their disability; others do not realize it may be their obligation to provide employers with sufficient information; while others do not recognize their potential entitlement to a reasonable accommodation. Employees may also fear retaliation once they reveal the need for an accommodation.
On the other hand, some employees feel they have the right to dictate what type of accommodation should be provided. My favorite example arose when I received a call from a client informing me that an employee brought in a doctor’s notes indicating she had a serious sinus condition and needed “a scent free environment to every extent possible” and demanded to be taken out of a cubicle and placed in a private office because the coworkers who shared her cubicle area wore too much perfume. This particular scenario opened up a whole host of issues, including whether the employee was actually disabled, whether a scent-free environment existed, and whether the employee was simply taking things to a new level to get an office. However, this request required my client to engage in the interactive process, which concluded with the employee being offered a personal humidifier and a variety of trendy facemasks after a long conversation with the employee’s doctor (with the employee’s permission, of course). Shockingly, the employee declined the offer to accommodate her and elected to simply take her allergy medicine instead. What this situation revealed is that the interactive process is as useful for employers as it is to employees.
Attorneys representing employees, as well as those representing employers, should encourage their clients to actively participate in the interactive process. When handled appropriately, the interactive process allows disabled employees with limitations to remain employed and be active contributors in the workforce, which is exactly what the ADA intended.
Keywords: litigation, employment law, labor relations, Americans with Disabilities Act, ADA, accommodation, interactive process
Wendi D. Barish is the deputy general counsel of labor and employment for the Philadelphia Housing Authority.
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