For the most part, employers are familiar with and make every effort to comply with the Americans with Disabilities Act, as amended (“ADAAA”). These compliant employers understand that the ADA prohibits discrimination against qualified applicants and employees because of a disability. These employers also understand that they must provide a reasonable accommodation to such individuals with a disability, absent an undue hardship. To determine if a reasonable accommodation exists, employers must engage in the “interactive process.” What I find to be an area of frequent misunderstanding . . . how does the interactive process – a mandatory requirement – work? Often employers take a solo approach to evaluating whether an accommodation can be made. This action, while well-intentioned, fails to satisfy the requirements of the ADA.
The ADA requires covered employers to engage in an interactive process to determine the limitations created by the applicant’s or employee’s disability and how to respond to these limitations. In other words, the employer must engage in a dialogue with the applicant or employee. There is no exact script for employers to follow – the goal is to determine the employee’s limitations and identify potential reasonable accommodations, if any.
What should you be discussing during the interactive process? First, determine the essential functions of the applicant/employee’s job. This is where accurate, thorough Job Descriptions are critical. Second, determine the nature and extent of the individual’s limitations. Discuss with the individual his or her exact limitations and ask how these limitations could be overcome. Employers should consider the employee’s request and then explore potential reasonable accommodations. Talk to the applicant/employee about possible accommodations and assess whether the accommodation would enable the individual to perform the essential functions of the job position. Finally, select the most appropriate accommodation, if one is available. Employers do not have to grant the request of an employee if it is too burdensome. Rather, an employer is free to discuss alternatives or, where the essential functions of the job cannot be performed with a reasonable accommodation, to explain same to the employee and explore leave as a reasonable accommodation or consider separation of employment.
Please keep in mind that while applicants/employees have a duty to ask for an accommodation, if the employer has notice of a potential disability, then the employer should initiate the process. Failure to do so could result in litigation resulting in owed wages, compensatory damages, and the ever-dreaded and never cheap reimbursement of a plaintiff’s attorneys’ fees. If your supervisory staff needs training on this process, please contact me. To be sure you don’t miss out on upcoming words of wisdom, subscribe to this blog!