News// December 2015

The Interactive Process Requirement Under The Americans With Disabilities Act

Since the 2011 amendments to the Americans with Disabilities Act, the federal courts and the Equal Employment Opportunity Commission have focused less upon whether an employee is affected by a disability, and more upon the accommodation offered by the employer and whether it is reasonable. No bright-line test for reasonableness exists under the ADA, and each case will depend highly upon the particular fact situation that is involved.

However, regardless of the nature of the disability claimed by an employee, the employer is required by the ADA to engage in an "interactive process" in order to explore, and potentially find, a reasonable accommodation. In the absence of evidence that the employer launched and completed the interactive process, its offered accommodation, or lack thereof on the grounds that none of the options were reasonable, will be hard pressed to withstand scrutiny by the courts or the EEOC. It is, therefore, important that all employers affected by the ADA understand the interactive process.

The interactive process is essentially a mutual dialogue between the employer and the employee, with the objective of arriving at an agreed upon, reasonable accommodation. The employee is required to participate in the process, and their failure or refusal to do so amounts to a waiver of rights under the ADA. As with all phases of the interactive process, any failure of the employee to participate should be carefully and thoroughly documented, with particular attention given to the opportunities for participation that were provided by the employer.

The interactive process begins when the employer receives notice that an employee is affected by a disability that is covered by the ADA. Although notice to the employer typically occurs when the employee provides medical documentation and requests an accommodation, it can also take place through observations of supervisors and managers. The ADA applies if an employer "regards" an employee as disabled. Remarks from supervisors such as "John seems to have a back problem, and he can barely lift 20 pounds without grimacing" can be sufficient to trigger the act.

After notice is received, the employer should contact its human resources department and enlist its involvement. Human resources should, if possible, confirm the disability with the attending physician of the employee. The employee should be provided with a copy of their job description and an ADA questionnaire, and given an opportunity to identify those essential functions of their position that they cannot perform. Management and human resources should begin the process of developing and evaluating reasonable accommodations.

The next step involves meeting with the employee. Using the job description or other written documentation of the essential functions of the position, the employer and employee should mutually determine which cannot be performed on account of the disability. The employee should also be asked for input concerning what they consider to be a reasonable accommodation. The ADA does not require that the employee's input or recommendation concerning accommodation be accepted by the employer, but only considered during the evaluation process. The meeting with the employee should include a discussion of open positions that might serve as an accommodation. The ADA does not require that the employer create a position that could be filled by the worker.

The employee should be advised, in writing, of the outcome of the meeting and the basis for the decisions that were reached. If an accommodation is found and established for the employee, periodic meetings with management and human resources should be held to determine its effectiveness. If the first accommodation does not work, the interactive process should begin again.

Complete and thorough documentation of all steps of the interactive process is vital. Careful attention should be given to critical areas of the process, such as the particular accommodation that was considered, all options that were evaluated, the reasoning behind the selection of the accommodation and the rejection of alternatives, the costs associated with the accommodation, and the level of participation by the employee in the entire process. A thorough paper trail can be the employer's best friend when dealing with an ADA case.