During the last eight years since the Americans with Disabilities Act Amendments Act (ADAAA) was enacted, the landscape for employers has changed dramatically.
The odds of being sued have increased significantly and the onus is now on employers to engage in an interactive process with an employee who claims to be disabled or one that you, as an employer, consider to be disabled.
The original Americans with Disabilities Act has been in effect for 25 years, but the ADAAA shifted the emphasis from whether an employee has a qualifying disability to the interactive process and the efforts employers take to explore reasonable accommodation with employees. That is where the focus remains today.
The employment law firm of Foley and Lardner LLP, in a recent blog post, recommends the following whenever an employee mentions a potential disability or the circumstances suggest a potential need for accommodation:
- Majority of people have a ‘disability’
The law firm recommends working from the position that if an employee begins talking about a mental health or physical condition affecting their ability to work, you should consider approaching the issue from the perspective that they potentially have a disability. Better that than to ignore what you’re hearing.
Many recent precedent-setting lawsuits have hinged on employers starting the interactive process too late or ignoring employees’ requests for accommodation. And some courts have ruled that even if the employer “perceives” that the employee is disabled, they may have an obligation to consider accommodation.
In other words, it’s better to start interacting with the employee than shutting down the process before it has a chance to start.
- Process matters as much as the result
Under the ADAAA, the focus is on the interactive process with the end goal of identifying how the employer can reasonably accommodate the employee or job applicant so that they can do their job.
The process must be conducted in good faith and thoroughly with the legitimate goal of identifying a reasonable accommodation. Courts have increasingly viewed this process as crucial, and almost as important as the end goal.
- Truly engage in the process
You’ll need to back up your interactive process with proof that you were engaged in it.
Even when it may be clear to you that you won’t be able to accommodate someone, you should still show that you tried to find a solution that would work.
Foley and Lardner recommend that you at least:
- Communicate with the employee and show that you either reached agreement on the restrictions or obtained supporting medical documentation.
- Show that you explored with the employee and their supervisor the possible reassignment of non-essential tasks.
- Show you assessed the employee’s qualifications and looked at every open job for which they qualified to assess a potential transfer.
- Show you had a final conference with the employee before concluding reasonable accommodation was not possible.
Make sure that you have a clear record of the interactive process. The more you can back up your efforts of trying to identify a reasonable accommodation, the more likely it will be that a court would view your efforts favorably and that you made good-faith steps in arriving at your conclusion.
“As we counselors love to say – document everything, including the thought process leading up to all conclusions reached, and the fact that you did not reach the final conclusion until after completing all steps in the process,” the law firm wrote in its blog.
- No cookie-cutter approach
While many employers want to consistently perform the same kinds of steps from situation to situation, it is equally important to take each accommodation inquiry and each employee’s unique circumstances on their own merits.
It’s highly unlikely that multiple employees will have the same limitations and the same medical diagnoses, restrictions and prognoses regarding the various essential functions of the job.
Because of this, there is no single approach to accommodation, and your approach to the interactive process should allow for flexibility.
- Don’t forget the FMLA and workers’ comp
Often there is some overlap between the ADA and other legal frameworks like the Family Medical Leave Act and workers’ compensation insurance.
For example, if an employee cannot return at the expiration of FMLA leave for his or her own serious health condition, the employer runs a serious risk of terminating the employee without first conducting an independent ADA analysis and assessing whether additional leave or moving them into a different position conforming with their restrictions is a reasonable accommodation.
The same applies after an employee receives a permanent and stationary workers’ compensation diagnosis with restrictions that preclude maintaining him or her in the same position. State workers’ compensation requirements may not require an employer to take further steps in such a circumstance, but the ADA does.