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The ADA Interactive Process - It's More Important Than Ever

Marcus W. Campbell
Stephanie J. Cebulski
Miller Johnson - Grand Rapids Office

September 23, 2011

Previously published on September 22, 2011

Under the Americans with Disabilities Act (ADA), employers must provide a qualified disabled employee with a "reasonable accommodation" allowing the employee to perform the essential functions of his or her job. The ADA itself does not discuss how an employer should determine whether a reasonable accommodation exists, but ADA regulations require the employer to "initiate an informal, interactive process" to determine whether the disability can be reasonably accommodated.

Recent amendments to the ADA make the interactive process more important than ever. These amendments significantly expand the definition of disability to cover more—arguably the vast majority of—individuals in the workplace. The Equal Employment Opportunity Commission is taking advantage of this expanded definition of disability to enforce the ADA more aggressively. This means that as an employer you need to refocus your attention on the interactive process: because it is now far easier for employees to prove they are disabled under the ADA, liability might hinge on whether you properly engaged in the interactive process to try and accommodate the disability. Here are several common mistakes employers make when engaging in the interactive process.

Mistake #1: Failing to Recognize an Accomodation Request
The interactive process begins when an employee requests an accommodation. Although the employee must initiate this process, no magic words are required. The employee must simply inform you that he or she needs an adjustment to his or her job because of a medical condition. For example, an employee tells her supervisor she has chronic back pain, is having trouble doing her job, and wonders if there is anything the employer can do. She has probably invoked the interactive process, even though she did not use the word "accommodation." You must therefore train your supervisors to recognize requests for accommodations, in order to avoid claims that they ignored legitimate accommodation requests.

Mistake #2:  Failing to Engage in an Interactive Dialogue
Once an employee requests an accommodation, you must engage in a dialogue to determine whether a reasonable accommodation exists. The dialogue may be informal, but you should be sure to identify any work restrictions associated with the employee's medical condition and explore all accommodation options that will allow him or her to perform the essential functions of the job. Although courts require the employee to propose a reasonable accommodation, they will be quicker to find that you engaged in a true interactive process if you attempt to identify other possible accommodations. Additionally, you may offer an alternate accommodation that also allows the employee to perform the essential functions of his or her job, so it may be to your benefit to discover whether there are more efficient accommodations than the one the employee proposes.

Mistake #3:  Failing to document the Interactive Process
Documenting the interactive process is good insurance for a couple of reasons. Proper documentation helps you be sure that you're following the proper steps for engaging in the interactive process. It will also help you recreate those steps should an employee ever file a lawsuit claiming you failed to provide a reasonable accommodation, since in those cases courts typically focus on whether the employer engaged in a proper interactive process. Your careful documentation will show that you did.


The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.

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