Monday, August 25, 2014

The Interactive Process

What is the Interactive Process?

This summer marks the 14th anniversary of the Americans with Disabilities Act (ADA), the nation’s first comprehensive civil rights law prohibiting discrimination on the basis of disability. While the ADA has been around for many years, the issues surrounding disability discrimination and reasonable accommodation, including the interactive process, continue.

The ADA and the Minnesota Human Right Act, require employers to accommodate the disabilities of their employees.  To help determine effective accommodations, the EEOC recommends an “interactive process” between the employer and the employee.  This simply means that the parties work together to find an accommodation that works.

1. Request Accommodation

While there is no set formula for the interactive process, it typically starts when the employee or someone on their behalf requests an accommodation.  Requests for accommodation do not need to be in writing. 

Employers should be aware that some courts have suggested that if the employer knows that an employee needs an accommodation, it may have an obligation to provide it.  The EEOC’s guidance suggests that an employer should provide an accommodation when it:  knows of the disability; knows or should know that the employee is experiencing workplace problems because of the disability; or knows or should know that the disability prevents the employee from requesting a reasonable accommodation.

2.  Communicate

Once the request for accommodation has been made or the need for accommodation is obvious, the employer should initiate the interactive process.  Generally, courts have held that the interactive process requires employers to: analyze job functions to establish the essential and non-essential job duties; talk with the employee to learn their limitations; and explore the types of accommodations.

The interactive process imposes mutual obligations on both the employer and the employee. An employee is required to provide the employer with necessary information about their disability and needs for accommodation. Courts have held that an employer cannot be liable for failing to accommodate if a breakdown in the communication process is attributable to the employee.

Similarly, if the breakdown in the interactive process is attributable to the employer, courts have generally found this to be an adverse employment action.

3. Work Together To Identify Possible Accommodations

The employee and the employer should work together to come up with different potential accommodations that allow the employee to perform the essential functions of their job. 

Employers should remember that they must provide a reasonable accommodation unless doing so would pose an “undue hardship.”  The employer bears the burden of proving that it cannot provide the employee with a reasonable accommodation because it would cause an undue hardship.  Under the law, undue hardship means “significant difficulty or expense.”  See, 42 U.S.C. § 12111(10).  The EEOC’s Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act states: “Generalized conclusions will not suffice to support a claim of undue hardship. Instead, undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense.” See, 29 C.F.R. pt. 1630 app. §1630.15(d) (1996). The Enforcement Guidance also states that undue hardship cannot “be based on the fact that provision of a reasonable accommodation might have a negative impact on the morale of other employees.” 

If you have questions about the interactive process or are seeking help obtaining a reasonable accommodation, feel free to contact us at 612-278-9832.