The Americans with Disabilities Act and the Interactive Process
Posted on January 7, 2019 by Shannon L. Trivett
Under the Americans with Disabilities Act (“ADA”), employers are required to provide reasonable accommodations to employees with disabilities, unless doing so would pose an undue hardship for the employer. Such accommodations could include making existing facilities more accessible, restructuring a position, offering a modified work schedule, or even reassigning the employee to a vacant position. Finding an acceptable and reasonable accommodation for an employee, however, is often easier said than done.
Many accommodations are obvious and should be granted, i.e., providing a stool for a pregnant cashier to sit on while operating the cash register. Other accommodations, however, may be less obvious or may appear unreasonable.
If the employer does not or cannot immediately grant an employee’s request for a specific reasonable accommodation, it is incumbent upon the employer to begin what is known as an informal “interactive process” with the employee whereby potential alternative accommodations are shared and discussed between the employee and the employer.
Under Equal Employment Opportunity Commission regulations, this interactive process “should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” To facilitate this, the employer may ask the employee for medical documentation regarding his or her disability in order to determine precise scope of the disability.
Additionally, the employer and employee should consider what the “essential functions” of the position are in order to identify an appropriate accommodation. The “essential functions” are defined as the fundamental job duties of the position, rather than mere marginal functions of the position. A job function may be “essential” if the function is the reason the position exists, or if the function is highly specialized. In determining whether a job function is “essential,” an employer will want to consider, among other things, whether the function is clearly articulated in any written job descriptions for the position and the amount of time spent performing the function.
It is important that both the employer and employee engage in good faith negotiations. If an employer unreasonably ends the interactive process, or refuses to engage in it in the first place, it may be liable for denying a reasonable accommodation. Likewise, if an employee unreasonably ends the interactive process, or refuses to engage in it in the first place, he or she may lose the ability to argue that he or she was denied a reasonable accommodation.
If you feel you need a reasonable accommodation from your employer, or if you have an employee requesting a reasonable accommodation, you would likely benefit from consulting with an employment attorney. Our employment attorneys here at Lasher Holzapfel Sperry & Ebberson welcome your call.