Idaho Employers, Let ADA’s Interactive Process Work for You
Photo by Robert Ruggiero
By Phillip S. Oberrecht, Elam & Burke
According to the latest charge statistics released by the Equal Employment Opportunity Commission (EEOC), disability discrimination claims have increased every year since the Americans with Disabilities Act (ADA) Amendments Act of 2008.
The latest year reported—fiscal year (FY) 2017—showed disability discrimination claims at 31.9% of all charges filed, only behind race discrimination and retaliation charges. With this continuing increase in disability discrimination claims, let us again review the interactive process used to accommodate disabled job applicants and employees.
The interactive process begins when an employee requests an accommodation to enable him to perform his job. His request may be verbal or written, and although he doesn’t need to use any magic words (such as “accommodation”), he must clearly seek assistance for a medical condition. Although the request need not be in writing, you may ask him to commit it to writing and present it to you.
In some circumstances, an employee doesn’t need to make a request for accommodation to trigger the interactive process—e.g., when the disability is evident and clearly interfering with his performance. EEOC guidance states an accommodation should be provided when the employer:
- Knows the employee has a disability,
- Knows or should know he is experiencing workplace difficulties because of his disability, or
- Knows or should know the disability prevents him from requesting an accommodation.
Once the interactive process is triggered, you and the employee have an obligation to undertake a good-faith effort to determine whether a reasonable accommodation exists and to implement it. You should cooperate and communicate with him, his supervisor(s), and his healthcare providers. The process typically proceeds with the following steps.
Determine Whether Employee Is Disabled
You should determine if the employee is disabled in accordance with the statutory definition of “disability,” meaning he has “a physical or mental impairment that substantially limits one or more major life activities . . .; a record of such an impairment; or [is] regarded as having such an impairment.”
The ADA defines “major life activities” to include caring for oneself and performing manual tasks, as well as seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
It also includes the operation of major bodily functions such as digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions, along with the immune system and normal cell growth.
Determine Whether Employee Is Qualified
Next, you must determine if the employee is qualified to perform his essential job functions with or without an accommodation. Assess the job requirements to ascertain which functions are essential and which are nonessential. Consult the written job description for the particular position, and discuss the job functions with his supervisor.
You should identify the limitations the employee’s disability places on his ability to perform his essential job functions by consulting with him and potentially with his healthcare provider. Before discussing his disability with—or obtaining records from—his healthcare provider, you must obtain written authorization.
All notes and other documents relating to his health care or disability must be kept in a separate file apart from his normal personnel file, with access limited to those dealing with his accommodation and his supervisors, who should be aware of his accommodation and its efficacy.
Once you have determined through discussions and investigation that the employee is qualified to perform his essential job functions with or without an accommodation, you must then examine the accommodation he is seeking to determine if it is reasonable.
Determine Requested Accommodation’s Reasonableness
You are required to provide the employee’s requested accommodation if adopting it doesn’t cause you undue hardship or pose a direct threat to his safety or endanger others. The request may come directly from him or from his healthcare provider. In either event, it must be reasonable. If you identify another accommodation that allows him to perform his essential job functions, you may provide it instead, so long as it, too, is a reasonable accommodation.
Undue hardship to the employer exists when the accommodation is unduly costly, extensive, substantial, or disruptive or fundamentally alters its business’s nature or operation. Whether an accommodation constitutes an undue hardship is determined on a case-by-case basis. An accommodation that is too costly for a business with an annual gross revenue of $2 million may not be too costly for a business with an annual gross revenue of $65 million.
Similarly, an accommodation requiring the employee to work a special shift may be too disruptive to a 10-person machine shop but not too disruptive to a 1,200-person manufacturing plant. The ADA and the EEOC regulations identify these and other factors that may be considered in determining if a requested accommodation provides an undue hardship.
Accommodations vary with the employee, the employer, the facility, the locality, the union, and other factors. They may include alterations to equipment, variations in work schedules and shifts, modifications to the work environment, restructuring jobs, providing interpreters, readers, language signers, or special equipment, transfers to vacant positions, granting unpaid leave, relocating work stations, or working from home.
Once an accommodation is reached, it should be agreed to in writing, signed by the employee, and implemented. You should provide the appropriate supervisors with a written notice of the accommodation.
Put the entire process in writing to memorialize each step taken—from the original request, through all the stages of investigation, discussions, document requests, and up to the final determination. Hopefully, you and the employee are able to agree on an accommodation, but even if he refuses or you find an accommodation would pose an undue hardship or a safety threat, having documented the interactive process will show you made a good-faith effort.
Each time an employee requests an accommodation for a disability, it should be easy for you to quickly review the procedures for engaging in the interactive process. They should be set forth in a written policy distributed to company management and HR.
Your attorney can help you prepare your policy, provide you with resources to investigate the requests, and act as a sounding board in determining reasonableness. Your preparation and good faith will assure your success in helping your workforce reach its potential.
Phillip S. Oberrecht is an attorney at Greener Burke Shoemaker Oberrecht, P.A. and an editor of Idaho Employment Law Letter. He can be reached email@example.com.