What Are an Employer’s Obligations Under the ADA’s Interactive Process?
In the reasonable accommodation context, the Americans with Disabilities Act (“ADA”) envisions an interactive process by which employers and employees work together to assess whether an employee’s disability can be reasonably accommodated. The interactive process is an informal practice in which the covered individual and the employer determine the precise limitations created by the disability and how best to respond to the need for accommodation. Because unique and challenging situations can arise with respect to disabilities in the workplace, employers must understand their obligations to engage in the interactive process and reasonably accommodate individuals with disabilities.
What should an employer do once it receives an accommodation request?
Once an accommodation has been requested or the need for an accommodation is obvious, the employer should initiate an interactive process with the individual. Courts generally have held that the interactive process requires employers to:
- analyze job functions to establish the essential and nonessential job tasks;
- identify the barriers to job performance by consulting with the employee to learn the employee’s precise limitations; and
- explore the types of accommodations which would be most effective.
Employers can demonstrate a good faith attempt to accommodate by meeting with the employee, requesting information about the limitations, considering the employee’s requests, and discussing alternatives if a request is burdensome. As part of employer best practices regarding the interactive process, and for each accommodation request, the employer should:
- Document in writing its receipt of the request for accommodation, providing a copy to the individual and retaining a copy for the employer’s records. This allows the employer to show that it took the request seriously and responded promptly.
- Ask the individual for information about the extent of the impairment, including notes from doctors or other health care providers, and request medical testing relevant to the accommodation at issue.
- Confer with the individual to discuss accommodation alternatives, which includes listening to the individual’s preference and the option to suggest alternatives.
- Document in writing the discussion about the accommodation and the final determination about how the accommodation request is resolved, including any undue hardship analysis.
Employers should be mindful that the obligation to provide a reasonable accommodation is ongoing. An employer may be required to provide more than one accommodation to a covered individual, and the employer may be required to provide a different accommodation if the disability or other circumstances change.
When is an employee liable for the breakdown in the interactive process?
Because the interactive process imposes mutual obligations on employers and employees, an employer cannot be liable for failure to accommodate if a breakdown in that process is attributable to the employee. Courts have consistently attributed the breakdown in the interactive process to the employee where:
- the employee refuses to allow the employer to discuss the employee’s alleged disability with the employee’s doctor after attempts to accommodate the employee are unsuccessful;
- the employee did not respond to the employer’s request for information about the employee’s abilities and the nature and extent of the restrictions; or
- the employee uncompromisingly insists on a single accommodation that is unreasonable as a matter of law.
Is an employer required to provide an employee’s preferred accommodation?
No; an employer is not obligated to provide the specific accommodation requested by the employee; rather, the employer is required to provide a reasonable accommodation. Although the ADA provides a right to a reasonable accommodation, it does not provide a right to any specific requested or preferred accommodation. Thus, an employee is not entitled to his or her “choice” accommodation but rather a “reasonable” accommodation. For example, an employer may choose to let an employee call off work without penalty as a reasonable accommodation, rather than provide the employee’s requested accommodation of work from home.
Is an employer required to accommodate a non-disabled employee who has a relationship with an individual with a disability?
No; an employer is only required to provide an accommodation that is for the disability of the employee or applicant. The association provision of the ADA does not obligate employers to accommodate the schedule of an employee with a disabled relative because the plain language of the ADA indicates that the accommodation requirement does not extend to relatives of the disabled individual. Specifically, the Appendix entry for the association bias provisions in the ADA’s implementing regulations (29 C.F.R. § 1630.8 (2013)) provides: “an employer need not provide the . . . employee without a disability with a reasonable accommodation because that duty only applies to qualified . . . employees with disabilities.”
Can an employer lawfully deny an accommodation request?
Yes; an employer may be able to deny an accommodation request or defend against a legal claim of failure to accommodate by citing to undue hardship or direct threat.
What is an undue hardship?
Under the ADA, an employer is not required to make reasonable accommodations that would impose an “undue hardship” on the employer. The burden is on the employer to prove an undue hardship. Whether an accommodation will impose an undue hardship is determined on a case-by-case basis.
Some general principles may be gleaned from cases evaluating whether an accommodation is an undue hardship:
- An accommodation that would result in other employees having to work harder or longer is not required under the ADA.
- Where an employer has waived certain requirements for other employees, the employer cannot claim that it would cause an undue hardship to waive those same requirements for an individual with a disability.
- An employer may assert that a modified schedule for an employee would be an undue hardship because of the significant cost of keeping the facility open which may include additional hours for other personnel such as security personnel.
- An accommodation to one employee which violates the seniority rights of other employees in a collective bargaining agreement is not reasonable because it would expose the employer to potential union grievances and costly remedies.
When is a disability a direct threat?
Some disabilities pose a “direct threat” to the health and safety of individuals in the workplace. Where there is no reasonable accommodation available to negate that threat, employers may cite the direct threat defense.
Employers can assert the direct threat defense only if the individual poses a significant risk that cannot be reduced or eliminated by accommodation. A speculative or remote risk is insufficient. The assessment of whether an individual poses a direct threat is based on reasonable medical judgment that may be based on current medical knowledge or the best available objective evidence. Factors considered in assessing whether an individual poses a direct threat include:
- The duration of the risk.
- The nature and severity of the potential harm.
- The likelihood that the potential harm will occur.
- How soon the potential harm may occur.
Portions reprinted with permission from Implementing the Interactive Process Under the ADA, which originally appeared in the Fall 2013 Issue (Vol. 12 No.1) of Employment & Labor Relations Law published by the American Bar Association Section of Litigation. To view the full text of this article, click here.
© 2013 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.