Title I of the Americans with Disabilities Act (ADA) prohibits employment discrimination on the basis of a disability and requires employers engage in an interactive process and provide reasonable accommodations. A failure to do so may result in liability.
The ADA requires employers to provide reasonable accommodations to qualified applicants or employees. A “reasonable accommodation” is defined as assistance or a change to a position or workplace that accommodates employees with disabilities so they can do the job without causing the employer undue hardship, such as too much difficulty or expense.
Use the Interactive Process to Determine Reasonable Accommodation
In order to determine the appropriate reasonable accommodation, employers and employees must engage in the interactive process, which requires communication and good-faith exploration of possible accommodations. An employer that acts in bad faith in the interactive process may be liable if it can be reasonably concluded that the employee would have been able to perform the job with a reasonable accommodation.
It’s a two-way street: an employee must also make a good faith effort to comply with any of the employer’s reasonable requests.
Steps of the Interactive Process
Step #1: Recognize the Accommodation Request
Every time an employee indicates he or she is having a problem related to a medical condition, the employer should consider whether that is a request for an accommodation.
Examples of an accommodation request could include the following:
- An employee needs to take time off but is not eligible under the Family and Medical Leave Act of 1993 (FMLA).
- An employee exhausts FMLA leave but needs more time off.
- An employee uses medical reasoning as an explanation for absences or performance issues (medication makes it hard to focus, needing extra breaks due to illness, etc.).
Step #2: Gather Information
An employer is entitled to know that an employee has a covered disability and any resulting limitations. An employer can (and should) require that the employee provide documentation about the disability and any limitations from the employee’s healthcare provider, as well as the duration of any limitations.
Employers should specify the information they need from the healthcare provider, and review the employee’s essential job functions to determine if they will be impacted due to the employee’s limitations.
Step #3: Explore Accommodation Options and Choose an Accommodation
Employers should look to past practices to determine if and how a similar situation was previously handled. Also, it is acceptable to invite both the employee and the healthcare provider to submit accommodation suggestions and take them into consideration. The employer and the employee should interactively seek an “effective” accommodation (one that will allow the employee to perform the essential functions of the job, now or in the near further), that is “reasonable” under the circumstances. Often, even before any undue hardship analysis, an employer may determine that certain requested accommodations are not “reasonable” and thus not required. Seeking legal advice during this process is wise, but it is particularly important if an employer is considering rejecting a possible accommodation as “unreasonable” and not required.
If necessary, the employer should conduct an undue hardship analysis. Generalized conclusions will not suffice to support a claim of undue hardship; but rather, undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense. For example, a company may consider:
- The nature and cost of the accommodation needed.
- The overall financial resources of the facility making the reasonable accommodation, including the number of persons employed at this facility and the effect on expenses and resources of the facility.
- The overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity).
- The employer’s type of operation, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer.
- The impact of the accommodation on the operation of the facility.
Generally, if more than one effective reasonable accommodation applies, the employer may choose the accommodation with one exception: putting the employee on leave. If there is another effective accommodation, other than leave, that would enable the individual to keep working, then the employer cannot require that the individual take leave. However, if the employee has FMLA available, the employee generally is allowed to choose to take leave under the FMLA rather than accept transfer to another job.
If you have questions or would like further information on the ADA interactive process, feel free to contact the authors and subscribe to this blog for news, commentary and insights on the complicated and constantly changing labor & employment and employee benefits laws affecting employers.
Firm attorneys Bob Horton, Lymari Cromwell, Tim Garrett and Laura Mallory authored an article on this topic titled “Alcohol and Substance Use Disorder under the ADAAA,” that was published by HR Professionals on March 30, 2020. You can access the full article here.