Although employers are well aware of their duty to engage in the interactive process when presented with an employee's "reasonable accommodation" request, the concept is often easier said than done. By understanding the requirements and limitations of the interactive process, employers can be better prepared to recognize accommodation requests and respond accordingly.
The Interactive Process
Under the Americans with Disabilities Act, as amended (ADA), employers must engage in the "interactive process" with an employee to determine the precise workplace limitations created by an employee's disability and to identify possible accommodations. Despite the importance of this informal process for identifying possible accommodations, the interactive process is not clearly defined in the statute and remains a murky area for most employers. The requirements of the interactive process have been developed through case law, which continues to evolve. As a result, employers find themselves trying to navigate an ever-changing legal landscape without clear guidance on how to avoid costly litigation, especially when the need for an accommodation is not obvious or the request for an accommodation is unclear.
Ideally, the interactive process is triggered when an employee discloses a disability to the employer and clearly identifies his limitations and desired accommodation(s), preferably in writing (although a written request is not required by the ADA). However, there are no magic words that must be used to request an accommodation-and even more vexing, when requesting an accommodation, an individual need not mention the ADA or use the phrase "reasonable accommodation."
How Does an Employer Know That a Request Was Made?
Employers should consider the interactive process triggered any time they learn about an employee's disability and any job requirements the employee cannot easily fulfill as a result of the disability. For example, an employee makes a reasonable accommodation request if during passing conversation, he informs his supervisor that his wheelchair cannot fit under the desk in his office. Although the employee did not specifically say he needed a new desk because of his disability, the employer has been put on notice that the employee is in need of a modification or adjustment to the work environment to enable the employee to perform the essential functions of his position.
What Does Interactive Process Require From Employers?
After becoming aware of the need for an accommodation, the employer has a duty to initiate the interactive process with the requesting employee. Employers are put on notice where the need for the accommodation is obvious, where a request is expressly made and even when an employee applies for the Family and Medical Leave Act (FMLA) leave. Generally, courts have found that during the interactive process employers must:
- Analyze the job duties of the requesting employee to identify essential and nonessential functions. Looking at the employee's job description alone is insufficient. While the employee's job description may serve as a starting point, an employer must conduct an in-depth analysis of the functions, duties and tasks actually performed or required of the requesting employee.
- Consult with the requesting employee to identify the workplace barriers to job performance and the employee's precise limitations. This may include requesting supporting medical documentation from the employee's health care provider.
- Explore possible accommodations. Although an employer has the duty to provide a reasonable accommodation, there is no requirement to provide the specific accommodation requested by the employee. The accommodation need only be effective. Accordingly, when faced with a nonspecific or unclear request for an accommodation, employers should offer possible accommodation options to the employee and be prepared to explain how the proffered accommodations effectively address the employee's limitations.
By engaging in the interactive process in good faith, employers can more readily defend against failure to accommodate claims. As a best practice, employers should document the steps taken throughout the interactive process:
- After receipt of a reasonable accommodation request, promptly send the employee written correspondence confirming the date of the request, inviting the employee to engage in the interactive process and setting a date and time for an in-person meeting to discuss the employee's request. Memorializing the request in writing allows an employer to demonstrate that it took the employee's accommodation request seriously and swiftly responded.
- Meet with the employee to identify limitations resulting from the employee's disability and to discuss the employee's preferred accommodation. It is important to temporally document the meeting. For example, employers should send the requesting employee a calendar invite for the meeting and a follow-up email after the meeting summarizing the discussion and next steps. It is also best practice for the employer to have at least two representatives in attendance at the meeting, with one serving as a witness.
- If the employee's limitations or an effective accommodation remain unclear, an employer should make a written request for more information from the employee, including a request for notes and medical certifications from the employee's healthcare provider. The correspondence should assure the employee that health information received will be kept confidential and that the inquiry is limited to medical information regarding the employee's accommodation request.
- Send written correspondence to the requesting employee documenting the resolution of the accommodation request. Specifically, summarize the actions taken during the interactive process and identify the accommodation that will be provided. If there is no reasonable accommodation available, document the reasons for denying the request, including any undue hardships that were considered.