The Americans with Disabilities Act (ADA) applies to employers with at least 15 employees and prohibits discrimination against qualified individuals with disabilities in job application procedures, hiring, terminating, advancement, compensation, job training and other terms, conditions and privileges of employment. The ADA requires covered employers to provide effective, reasonable accommodations for employees with disabilities so they can perform the essential functions of their jobs.
When determining reasonable accommodations, the EEOC recommends employers use an “interactive process” in which employers and employees with disabilities requesting accommodations work together to determine accommodations. This interactive process is an in-depth review of the employee’s job responsibilities, the impact a disability is having on the employee’s ability to do her job and options for a reasonable accommodation.
In some cases, an interactive process is not necessary, or an abbreviated one will suffice, such as is the case when a disability is obvious. For example, if an employee in a wheelchair requests adjustments to the height of his desk to accommodate his wheelchair and the employer complies, there is no need for a step-by-step formal, interactive process. However, in most situations, the presence of a disability may not be obvious, and neither is the most appropriate accommodation.
It’s important to be able to recognize a request for an accommodation as it may not be a formal, straight forward request. A request can be a statement in “plain English” that an individual needs an adjustment or change in the application process or at work for a reason related to a medical condition. The request need not include the terms “ADA” or “reasonable accommodation” and does not have to be in writing. The request could be made on behalf of the employee from a family member, doctor, friend or other representative.
For example, an employee may tell her supervisor she is having trouble getting to work on time because of a health issue. Although the employee doesn’t specifically ask for an accommodation or provide details about her “health issue,” the employer is now on notice the employee may have a disability for which the employer must provide a reasonable accommodation. Employers should err on the side of caution in cases where the need for an accommodation is unclear. Simply asking the question, “Is there something we can do to help you?” should elicit enough information to begin the interactive process.
In the following cases, the employer should initiate the interactive process about an accommodation without the employee asking for help:
- The employer knows the employee has a disability
- The employer knows, or has reason to know, the employee is experiencing workplace issues because of the disability
- The employer knows, or has reason to know, the disability prevents the employee from requesting a reasonable accommodation
In these cases, if the employer asks if the employee needs an accommodation and he says no, the employer has fulfilled his obligation under the ADA unless the employee’s circumstances change, and he requests an accommodation later.
Once an employee has made an accommodation request, the next step in the interactive process is to collect information necessary to process the employee’s request. As previously stated, in some cases, the accommodation needed is obvious and no further information needs to be collected.
In other cases, an employee may simply say, “I have a condition that makes it hard for me to get my work done.” In this case, an employer needs more information to determine what impediments exist making it difficult for the employee to complete her work. The employee requesting the accommodation is often the best source of information about the disability and possible accommodations.
Employers may also request documentation from the employee’s medical provider to establish a covered disability, confirm an accommodation is needed and assist in determining the best accommodation for the employee. This documentation can be provided from an array of health care providers such as an occupational therapist, nurse, psychologist, psychiatrist, physical therapist and vocational rehabilitation specialist. Employers must be careful not to run afoul of the ADA by making medical inquires beyond what is absolutely necessary to establish the presence of a disability and help determine a useful accommodation.
Research and Choose an Accommodation
Once a disability and the need for an accommodation has been established, the next interactive step is agreeing on the best accommodation for the employee. It’s critical for both the employee and employer to get at the heart of the employee’s issue. Some questions the employer can ask to obtain quality information are:
- What specific limitations are you experiencing that affects your ability to do your work or experience equal employment opportunity?
- Are these limitations sporadic or constant?
- What specific job tasks or work environments are creating impediments to your successful job performance?
- Do you know of any specific accommodation that may help you perform your job?
- Do you think your health care provider may have suggestions for an acceptable accommodation?
Employers should keep an open mind when discussing possible accommodations with an eye towards reimagining how the work gets done. Should the employee and employer have difficulty determining the best accommodation, the Job Accommodation Network (JAN) is an excellent, free online resource with innovative accommodation ideas for employers. Again, employers must comply with the ADA’s confidentiality requirements when requesting assistance from outside resources.
Once possible accommodations have been explored, the employer must choose an accommodation. When several accommodations are being considered, while it is ultimately the employer’s decision, it is best to approve the accommodation the employee prefers if possible.
Employers should be ready to defend their choice if the accommodation is different from what the employee requested. If the employer and employee are not sure an accommodation will work, both parties can agree to a trial period to see if the accommodation suffices and, if not, try a different accommodation.
Implement and Monitor the Accommodation
When implementing the chosen accommodation, employers must ensure any equipment is quickly and properly installed and the employee is trained on its use.
If the accommodation requires a schedule or shift change or job reassignment, appropriate personnel should be notified, and the employee given sufficient time to acclimate to the change. If the accommodation is implemented and working, employers may consider the request and issue closed. However, an accommodation request is never completely closed as its effectiveness must be monitored over time and adjustments made if needed. The nature of disabilities may change as do job responsibilities over time.
Employers should periodically check in with employees who have accommodations and ask if the accommodation is still effective. If equipment is involved, routine maintenance and upgrades may be required. Employees must know to immediately report any issues or concerns about an accommodation to their supervisor or HR. Once the accommodation is effectively in place, the employee should be treated as any other employee and expected to maintain standards and performance expectations.
Common Pitfalls in the Interactive Process
Engaging in an interactive process for an accommodation request is essential and, in most cases, should be straightforward to execute. However, even the most diligent employer can fall victim to some of these common pitfalls during the process:
- Failure to act quickly or at all. There are many reasons a supervisor may fail to start a timely interactive dialogue with an employee requesting an accommodation. A supervisor may simply not recognize the employee is making a request. Many employees have never heard of the ADA or the term, “reasonable accommodation.” It is incumbent on the employer to read between the lines at times and know when an employee has triggered the interactive process requirement. In other cases, the need to start the interactive process could be masked by another issue, like a performance problem. During a meeting to discuss an employee’s failure to meet performance expectations, the employee may say, “I just cannot get out of bed in the morning.” Thinking the comment is simply an excuse for poor performance, a supervisor may disregard the statement instead of gently probing further by asking, “Is there any issue I can help you with?” Supervisors must be trained on how to recognize when a request is made and how to effectively handle it. Refusing to engage in these discussions or simply not knowing it is required, could be a violation of the ADA.
- Lack of clear policy and process. From an employee’s start date, she should have access to the company’s policy on equal employment opportunity and requesting a reasonable accommodation in the company’s employee handbook. Supervisors must know their role in administering the policy and adhering to procedures. If either party is unclear on how to proceed with an accommodation request, the interactive process is over before it ever began.
- Confidentiality concerns. Employers must maintain strict confidentiality about employees with disabilities and their accommodations. Only those with an absolute need to know should be privy to this information. Employers should be cautious about requesting more information than is really needed to prove the existence of a disability and need for an accommodation.
- Failure to document. The cardinal rule for all HR issues is, “Document, document, document.” Every step of the accommodation request process must be documented and maintained in the employee’s confidential file. An accurate job description serves as documentation of the employee’s essential job functions. It would be difficult to persuade a jury an employee was terminated for failure to perform the essential functions of his job if those functions don’t exist in a job description. Even if an accommodation doesn’t work, the process undertook to choose and implement it, should be documented to show the employer’s good faith effort to provide an accommodation. Certainly, if an accommodation isn’t provided because to do so would cause an “undue burden” on the employer, clear supporting documentation to that effect must be included in the employee’s confidential file. All follow up conversations about the accommodation and any adjustments or changes made must also be documented.
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