The Americans With Disabilities Act (ADA) requires covered employers to grant reasonable accommodations to those otherwise qualified employees who are able to complete the essential functions of the job with or without reasonable accommodation. The employer may negate the duty by showing that the only possible reasonable accommodations impose an undue hardship on the employer.
The Equal Employment Opportunity Commission (EEOC) drafted regulations and interpretative guidance indicating but the best way to determine reasonable accommodation is through an interactive process.
Neither the ADA itself, nor the interpretative guidance makes the interactive process mandatory. But courts have done so. Some critics argue that the law does not require an interactive process, though the courts do. This position overlooks two facts: First, the ambiguous interpretive guidance does not have the force of law. Second, until a higher court overrules them or the statute is amended to correct a misreading. Published opinions are legally binding. So as things are, there is a mandatory duty for the parties to engage in an interactive process when seeking a reasonable accommodation.
The Steps in the Interactive Process
How does the interactive process work?
STEP 1: The request for reasonable accommodation
Once there is a request for reasonable accommodation, the interactive process begins. The request does not have to be formal, and need not include the words “reasonable accommodation.” Whenever an employee identifies a problem performing a job function or accessing the work environment and the problem is related to a disability, the employer should consider whether the employee is making a request for accommodation under the ADA.
STEP 2: Identifying the essential functions of the job
Normally, identifying the essential functions of the job occurs before a request for accommodation, when an employer creates the position, a collective bargaining agreement sets forth the functions, or when a job description is created for interviews or hiring purposes. It is placed second in the process to emphasize that the essential functions may have to be re-evaluated at the time of the interactive process. Why? Because Pre-existing job descriptions are only part of the picture. They tell us what management envisioned the job to be at or near the time of its creation, by employer and employees. But the important question, for purposes of the interactive process is what the essential functions of the position are when the process takes place.
Evidence of the time spent on each function, what would happen if the function or not performed by the position holder, what the experience of past position holders has been, and what the experience of holders of similar position is now are all at least as relevant as the parties’ past intent. (29 CFR 1630.2(n)). And actual conditions are more relevant than past ones to the question of whether a disability can be reasonably accommodated. (Compare US airways versus Barnett 535 US 391 (2002) actual application of seniority system, not written terms, determine undue hardship defense).
STEP 3: Identifying limitations that affect essential functions
The third step is asking what limitations imposed by the employee’s disability will impact essential functions of the job. This should be done in direct consultation with the disabled employee. He or she knows their abilities and limitations best. Even if medical records show that two employees have the same disability, the limitations they experience may be vastly different.
While the Employee generally has the duty to request accommodation, an employer may wish to go over each of the essential functions of the job with them, asking whether the employee’s limitations will create a barrier to performance of those functions.
In addition, the entire physical setting in which the job will take place should be reviewed for accessibility issues. Taking a proactive approach, while not generally required, will likely eliminate problems in the future and maximize the employee’s ability to be productive. The parties must cooperate in good faith and promptly exchange any necessary information.
Employers should answer questions about expectations, physical demands of the job, the experience of the current position holder, any relevant company policies, provisions of a collective bargaining agreement or seniority system, and any other indication of or limitations on how the job will be performed. Similarly, the employee must probably provide medical records and other needed information about employee’s disability and limitations.
Any exchange of information should take place with no delay or obstruction. It is worth repeating that the Interactive process is it takes to be informal and cooperative, not formal and competitive. The goal is mutually beneficial employment relationship between the employee and the business
STEP 4: Identifying reasonable accommodations
Having discovered the barriers to performing essential functions of of the job, The next step is to identify what reasonable accommodations might effectively overcome those barriers and allow the employee to perform the job as required.
The best source of potential reasonable accommodations may be the disabled employee themselves. After all, they have been Dealing with the disability the longest, know the limitations best, and probably are aware of assistive devices that might be useful in overcoming your disabilities. Of course, this may not be true.
Most federal civil rights jurisprudence is based upon so-called “immutable characteristics“such as race. Disability, in contrast, concerns our physical and mental health, which is changeable. As a nation, we are growing older. Life expectancy is longer, and birth rates are lower. Many of us will “age into” disabilities. Some disabling conditions are progressive. What is means is that not every disabled person will be familiar with available reasonable accommodations. What then?
First, remember that the employer and employee have intimate knowledge of the job and the barriers that exist to peak performance. Many common sense solutions will suggest themselves. Is an office door too narrow for a wheelchair? Widen the door. Is a desk too low? Raise it on blocks, or get a different desk. Are typing reports the problem? Dictate them and have someone else transcribe them, or use voice recognition software, some of which is free.
Accommodations need to be effective, not fancy or expensive. The author once saved a county court system $30,000 by suggesting a folding metal ramp in place of an expensive electronic lift. The Department of Labor reports that fifty-eight percent of accommodations cost nothing, and the rest average $5OO. The employer retains a valued employee, saves the cost of hiring and training a new employee, increases productivity and usually improves morale.
Where commonsense does not provide the answer, there are alternatives. The Department of Labor maintains a website of possible accommodations organized by disability and limitation. (Www.askjan.org) Doctors, public and private rehabilitations counselors and accessibility specialists can also help.
STEP 5: Choosing among possible accommodations
Assuming that no accommodation stands out as being the obvious solution, the next task will be choosing between alternatives. The first criterion here is the degree of effectiveness. How well does the accommodation the barrier to performing the essential functions of the job? An ineffective accommodation is per se not reasonable. The employee’s preference for one reasonable accommodation over another should be taken into account but is not determinative. The employer may choose between reasonable accommodations.
An employee is never required to accept even the most effective reasonable accommodation, but if he or she Refuses to do so and is unable to perform the essential functions of a job as a result, termination may well follow. By offering effective reasonable accommodation, the employer has met its legal responsibility.
An employer may refuse to provide an otherwise reasonable accommodation because it causes an undue hardship on the business. The phrase “undue hardship” means “significant difficulty or expense.” However, in evaluating this defense the courts will consider the resources of the business, so what is an undue hardship on the corner bookstore will probably not be one for Amazon.
- DO Act quickly. Not being able to do one’s work, use the restroom properly or access a workspace probably feels like an emergency to the disabled person. The business is almost certainly losing money too.
- DON’T Make it difficult or embarrassing to request accommodations. “How can we make your work more effective?” is a good beginning to most such conversations
- DO Assign responsibility for making accommodations to someone, so it doesn’t get lost in the press of business. Being ignored can feel like a deliberate insult or discrimination.
- DON’T Train only one person in the process. If he or or she is swamped or out sick, unacceptable delay can result.
- DO Follow up. Although it’s ultimately the employee’s responsibility to ask for further accommodations, follow up can ensure the company is getting its business done, make the disabled employee feel valued and nip problems with new accommodations in the bud.
- DON’T Unnecessarily involve lawyers in the process. They almost always will transform an informal problem solving process into an adversarial rights-focused one.
- DO Use integrative mediators if disputes arise. Employers and employees can expect to work together, and share common goals and interests. Integrative mediators are experts at preservation of relationships and crafting practical solutions that benefit all parties – exactly the mindset needed in the ADA interactive process.
Engaging in the interactive reasonable accommodation process ensures that disabled people, the majority of whom want to whom want to work, can do so to the fullest extent possible, and that employers retain valuable and motivated employees while reducing costs.