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May 1, 2012

Navigating the Interactive Process Under the Americans with Disabilities Act

May 1, 2012

By Michael T. Garone


Michael Garone
By Michael T. Garone

Michael Garone

When an employee has requested a reasonable accommodation of a disability under the Americans with Disabilities Act ("ADA") or a state law counterpart to the ADA, it is incumbent upon the employer to engage in an interactive process with the employee to determine if a reasonable accommodation exists which will assist the employee in being able to successfully perform the essential requirements of the job. Over the years, I have noticed certain common mistakes made by employers with regard to the interactive process.

I. What Is the Interactive Process?

The interactive process is a brainstorming session between the employer and the employee to determine whether and how an employer can provide a reasonable accommodation to enable the employee to overcome the barriers that his or her disability put in the way of performing the essential functions of the job. The EEOC regulations discuss this process in detail in the Appendix to the regulations, 29 C.F.R. part 1630. This provision provides in part that:

Once the individual with a disability has requested provision of a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation. The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the individual with a disability.

When the individual with a disability has requested a reasonable accommodation to assist in the performance of a job, the employer, using a problem solving approach, should:

(1) Analyze the particular job involved and determine its purpose and essential functions;

(2) Consult with the individual with a disability to ascertain the precise job-related limitations imposed by the individual's disability and how those limitations could be overcome with a reasonable accommodation;

(3) In consultation with the individual to be accommodated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position; and

(4) Consider the preference of the individual to be accommodated and select and implement the accommodation that is most appropriate for both the employee and the employer.

The interactive process is especially important in the Ninth Circuit, the federal jurisdiction where Oregon and Washington cases are adjudicated. The Ninth Circuit has repeatedly shut down an employer's ability to establish summary judgment in ADA cases where the employer failed to engage in an interactive process dialogue with its employee.

For example, in Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1112 (9th Cir. 2000), rev'd on other grounds, 535 U.S. 391, 122 S. Ct. 1516, 152 L. Ed. 2d 589 (2002), the Court noted that the interactive process was "a mandatory rather than a permissive obligation on the part of employers under the ADA." The Ninth Circuit articulated a clear requirement in Barnett that both the employer and the employee engage in the interactive process. Citing the EEOC Appendix, the Court articulated that employers should:

a) Enter into a good faith exploration of reasonable accommodations. This involves an exchange between the employer and employee to identify accommodations that will allow the employee to perform the essential functions of his or her job.

b) Communicate directly with the employee. Employers should conduct the interactive process in a personal meeting with the employee. Participants in the discussion should include the employee, the person most knowledgeable about the employee's job, and a human resources representative. Employers should carefully document the conversations, and any obstacles that the employee puts in the way of the discussion.

c) Demonstrate good faith. Employers should build in process to demonstrate that they approach the interactive process in good faith. Examples of this could be:

 Providing forms for the employee and/or his or her physician to complete to request accommodations;

 Training supervisors about the accommodation process;

 Responding promptly to accommodation requests;

 Including a discussion about the interactive process in its policy manual.

II. How Employers Can Avoid Common Mistakes Regarding the Interactive Process

a. Meet the Request with a Good Faith and Compassionate Response

When an employee requests an accommodation or facts come to the employer's attention that put the employer on notice that an accommodation may be needed, promptly confirm the employee's request with a compassionately worded letter confirming the request or need for an accommodation. Do not react negatively or accentuate the difficulties of reaching a reasonable accommodation. If the case ever goes to BOLI, EEOC or to a jury trial, the employer wants to be able to present a defense that has as its theme the employer's willingness to engage in an open-minded and good faith attempt to assist the disabled employee. An opening letter to the employee thanking him or her for their request for an accommodation and making clear the employer's good faith intention to engage in the interactive process will set the stage for that theme.

b. Document Your Attempts to Engage in the Process

Employers often take various steps to find accommodations for disabled employees and yet do not adequately document what they have done. For example, the human resource professional or other management official may have spoken to numerous individuals in the workplace but does not document those discussions.

Under those circumstances, it is imperative that the employer document the steps that it took to identify an accommodation.

Similarly, communications with the employee making the request should be well-documented. If the employer needs medical information about an employee's limitations or wants the employee's input about what accommodation the employee thinks is reasonable, such requests should be confirmed in writing. If an employee does not produce required information, the employer should send regular follow-up letters indicating its good-faith need for the information requested. And if an accommodation is offered, the employer should make sure that it puts the offer in writing with a full and complete description of the provided accommodation.

c. Make Sure Frontline Supervisors Are Trained on the Interactive Process

Plaintiff attorneys bringing ADA cases almost always question frontline supervisors during depositions and at trial about their training regarding the ADA and their knowledge of the interactive process. Nothing makes a management attorney squirm more than when the supervisor does not even know what the "interactive process" is or has had no training at all about the ADA. Train your supervisors so that they at least (1) have the basic skills to recognize an employee who may suffer from a disability that is creating problems with performance of the essential functions of the job; and (2) recognize the importance of the interactive process and know how to implement and assist in that process.

d. Use Available Assets

If you are confronted with a request for accommodation, take advantage of the Job Accommodation Network ("JAN"), which you can find on the web at http://askjan.org/ or call at 800-526-7234. JAN provides free consulting services for all employers, regardless of the size of the employer's workforce. Services include one-on-one consultation about all aspects of job accommodations, including the accommodation process, accommodation ideas, product vendors, referrals to other resources and ADA compliance assistance. Being familiar with many different industries and many common disabilities, JAN can often offer substantial no-cost assistance in reaching real-world solutions to many accommodation problems. And seeking such help early on speaks to the employer's good faith and reinforces that theme of cooperation and compassion that will come in handy in front of a jury should the employer be unable to provide a requested accommodation and litigation ensue.


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