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.
