With the enactment of the ADA Amendments Act of 2008 (ADAAA) and the new expansive interpretation of “disability,” employers will more frequently face the issue of whether an applicant or employee can be “accommodated.”
The determination of whether and how to accommodate an employee involves engaging in an “interactive process” with the employee. The interactive process is a dialogue
between the employer and employee designed to identify the precise limitations resulting from the disability and the potential reasonable accommodations that would enable the employee to perform the essential functions of his or her job.
The law is clear that employers have an affirmative duty to engage in this dialogue to explore whether there are actions the employer can take so the employee can continue to work. What is less than clear, however, is when this duty arises.
Obviously, the duty to engage in the interactive process is triggered when an employee requests an accommodation; however, the duty can be triggered in several less obvious ways. For example, employers are advised to initiate the interactive process when any of the following occurs: an employee presents with work restrictions or is limited to “light duty” work; an employee (or his or her representative) informs you that he or she is suffering from an impairment or
disability; or an employee appears to have difficulty performing his or her job.
Once an employer has knowledge of any of the above, it should promptly meet with the employee to determine whether the employee can be reasonably accommodated. Employers can demonstrate good faith in attempting to provide a reasonable accommodation by doing the following:
• Analyzing the job at issue and identifying its essential functions and purpose;
• Meeting with the employee who requests an accommodation and asking the employee what might help him or her;
• Showing some sign of having considered the employee’s request; and
• Offering and discussing available alternatives if the employee’s request is too burdensome.
Every step of this interactive process should be well documented so the employer can, if necessary, defend itself against charges of discrimination. Employees are not necessarily entitled to the accommodation of their choice, but employers should explore all available alternatives that would enable the employee to continue working without imposing an undue hardship on the employer’s operations.
Employers must be mindful that disability and reasonable accommodation issues must be analyzed on a case by case basis – there is no “one size fits all” analysis--a policy, which, unfortunately, is conducive to both litigation and relatively intense effort to prevent litigation.
Now is a perfect time to review job descriptions and consider the process to be used
when an individual requests an accommodation or submits work restrictions. Given the recent changes in the law, employers should consider reviewing past denied requests if the employee is still failing on the job. Managers and supervisors should also be instructed to consult with Human Resources when an employee seeks an accommodation and to refrain from taking immediate action to either refuse or grant
the request.
