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http://www.hreonline.com/HRE/images/Keisha-AnnGray106x106.jpgOffering Reasonable Accommodation

Question: You have written a lot about the importance of engaging in the interactive process under the Americans with Disabilities Act in order to figure out whether an employer can offer a reasonable accommodation for an employee with a disability. Can you give some more insight into the process itself – such as a step-by-step how-to guide for HR professionals to reference when engaging in the ADA's interactive process? 

Monday, March 10, 2014
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Answer: The Americans with Disability Act is a federal law that prohibits discrimination against individuals with disabilities. Title I of the ADA covers employment by private employers with 15 or more employees as well as state and local government employers. Employers should keep in mind that the ADA is a floor, not a ceiling, and that some state laws provide more restrictive protections than the ADA. See, e.g., Cal Gov't Code § 12926(m)(1)(B) (2013) (California's Fair Employment and Housing Act only requires an individual to be "limited," rather than substantially limited, in a major life activity); Fulton v. Johnson & Johnson Pharm. Research & Dev., LLC, No. 5-cv-819, 2008 U.S. Dist. LEXIS 14163, at *40 (D.N.J. Feb. 26, 2008) (stating that the New Jersey Law Against Discrimination is "significantly broader than the analogous provisions of the [ADA]").

The ADA imposes liability for an employer's failure to accommodate an employee's "known physical or mental limitations."  42 U.S.C. § 12112(b)(5)(A). "Ordinarily, the employer's duty to accommodate is triggered by a request from the employee" because an employee's disability and concomitant need for accommodation are often not known to the employer. See, e.g., Salgado-Candelario v. Ericsson Caribbean Inc., 614 F. Supp. 2d 151, 169 (D.P.R. 2008) (quoting Reed v. LePage Bakeries Inc., 244 F.3d 254, 261 (1st Cir. 2001)). Hence, the employee has the burden of showing that he or she sufficiently requested the accommodation in question. Id.

The employee's request must be "sufficiently direct and specific," giving notice that she needs a "special accommodation." Salgado-Candario at 169 (quoting Nathanson v. Med. Coll. of Pa., 926 F.2d 1368, 1381 (3d Cir. 1991)). At the very least, the request must explain how the accommodation requested is linked to some disability. "The employer has no duty to divine the need for a special accommodation where the employee merely makes a mundane request for a change at the workplace."  Salgado-Candario at 169 (quoting Reed, 244 F.3d at 261). In addition to making the required request for accommodation, the employee must also establish that the requested accommodation is reasonable, would enable her to perform the essential functions of her job, and that the request is feasible for the employer under the circumstances.

Under the ADA, employers who fail to make "reasonable accommodations to the known physical or mental limitations of an [employee] with a disability" discriminates unless the employer "can demonstrate that the accommodation would impose an undue hardship on the operation of [its] business."  42 U.S.C. § 12112(b)(5)(A); U.S. Airways Inc. v. Barnett, 535 U.S. 391, 395 (2002). A reasonable accommodation may include job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities. 42 U.S.C. § 12111(9)(A)-(B).

The Interactive Process

Under the ADA, an employer has a duty "to engage in an ‘interactive process' of communication with an employee requesting an accommodation so that the employer will be able to ascertain whether there is in fact a disability and, if so, the extent thereof, and thereafter be able to assist in identifying reasonable accommodations where appropriate."  Williams v. Phila. Hous. Auth. Police Dep't, 380 F.3d 751, 771 (3d Cir. 2004). An employer's failure to create and properly implement an interactive process can increase the "serious risk that it will erroneously overlook an opportunity to accommodate a statutorily disabled employee, and thereby violate the ADA."  Id. (quoting Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 317 (3d Cir. 1999).

There is no clear set of exhaustive steps that an employer must take to satisfy their duty to engage in the interactive process, but, at a minimum, the employer must "engage in a flexible give-and-take with the disabled employee so that together they can determine what accommodation would enable the employee to continue working."  EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 797 (7th Cir. 2005) ("If a disabled employee shows that her disability was not reasonably accommodated, the employer will be liable only if it bears responsibility for the breakdown of the interactive process.").

Because the interactive process requires a fact-specific inquiry, an appropriate response must be tailored to fit the specific circumstances at issue. That said, below are some general guidelines/steps for engaging in the interactive process. These steps outlined are not exhaustive, but are merely a guide that, if followed, can help with some of the complications associated with the interactive process.

Suggestions for the Interactive Process

1.             Establish a Policy

There is no requirement under the ADA that an employer have an interactive process policy, however, an employer has a duty to act in "good faith" during the interactive process, and having a clearly articulated policy and procedure for an accommodations request could go a long way in showing good faith. EEOC v. AT&T Mobility Servs. LLC, No. 10-13889, 2011 U.S. Dist. LEXIS 144195, at *26 (E.D. Mich. Dec. 15, 2011). Supervisors and human resource personnel should receive training on the policy so that they have an understanding of what qualifies as a request for accommodation under the ADA and what actions to take once they believe an employee has made such a request. This is not always an easy task, as a request for an accommodation does not have to be in "writing, be made by the employee, or formally invoke the magic words ‘reasonable accommodation.'"  Taylor, 184 F.3d at 313. Given the complexities associated with the interactive process, human resource personnel and managers should work closely to ensure that all employees understand the employer's policies and whom to contact for further assistance.

Along with a policy, employers should consider creating job descriptions (in case they do not have them already), and reevaluating those that they have. By doing this, employers will be better able to clearly identify the essential functions of each job, which in turn allows for an easier evaluation of the requested accommodation. This is important because "an employee incapable of performing the essential functions of his or her job is not a qualified individual with a disability, and is, therefore, not entitled to the protections of the ADA."  AT&T, 2011 U.S. Dist. LEXIS 144195, at *19-20. Courts will look closely at an employer's job description when determining a job's essential functions. Id. at *21.

2.             Arrange a Meeting with the Employee

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Meeting with the employee after an accommodation request is truly the most important step in the interactive process and allows both parties to "act upon information instead of assumptions." Sears, 417 F.3d at 805. This meeting should be attended by the employee's supervisor and a member of the human resource department. During this meeting, the parties should discuss what type of accommodation would enable the employee to perform the essential functions of his or her job. In appropriate circumstances, the employer may request that the employee provide medical documentation regarding the disability. An employee who fails to provide such medical documentation may be found responsible for the breakdown in the interactive process. Farran v. First Transit, No. 2:11-cv-961-JAD-CHW, 2014 U.S. Dist. LEXIS 14870, at *13-19 (D. Nev. Feb. 6, 2014).

It is important to remember that one meeting may not result in a resolution and that "the accommodation process is designed to be an enterprise in cooperative problem-solving, and is thus a continuing duty which may not be exhausted by one effort."  Id. at *15 (internal citation and quotations omitted).

3.             Make an Accommodations Decision

This decision should not be taken lightly, and it should preferably include the advice of the employer's human resource specialist and, if necessary, legal counsel. Factors to consider when determining whether an accommodation is "reasonable" include the total expense of the employee's proposed accommodations and whether other reasonable accommodations exist. When there are alternative reasonable accommodations, the "ADA regulations confer upon the employer the ultimate discretion in determining the accommodation to be provided to a qualified employee and, among various alternatives, ‘may choose the less expensive accommodation or the accommodation that is easier for it to provide.'  Litovich v. Somascan, Inc., No. 07-1397, 2008 U.S. Dist. LEXIS 108627, at *26 (D.P.R. Dec. 17, 2008) (citing 29 C.F.R. pt. 1630, app. at 415).

4.             Communicate the Decision to the Employee

As part of the good-faith process, an employer is prohibited "from delaying or obstructing the process."  Farran, 2014 U.S. Dist. LEXIS 14870, at *15. Therefore, accommodation decisions should be made in a reasonable time frame in order to reach, a quicker resolution and in order to lessen the likelihood of bad-faith claims. If the decision is to deny the requested accommodation or to offer an alternative, the employer should be able to clearly articulate the reasons for its decision. Simply denying the plaintiff's request without further explanation could be considered as bad faith and could also cause unnecessary conflict with the employee.

5.             Document Thoroughly 

Although this step is listed last, it should be an integral part of the accommodations process. While both parties have a duty to act in good faith, employment-related disputes can become acrimonious. There may be an inclination to not keep records in situations where the employee and employer are able to come to a quick and easy resolution, but this is a mistake. Every step in the interactive process should be documented to ensure an accurate record of events. When an accommodation is agreed upon, we suggest having the employee acknowledge the agreed-upon accommodation in writing.

Keisha-Ann G. Gray is a partner in the labor and employment department of Proskauer Rose in New York and co-chair of the department's employment litigation and arbitration practice group. Proskauer Associate Tulio Chirinos assisted with this article.

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