From extended leave to drug-usage during work hours, there are plenty of reasonable accommodations employers may be required to make under the ADA. The only weapon companies can rely on to safely shoot down unreasonable accommodation requests is the law’s interactive process.
Whenever the ADA — and potential accommodations — are in play, employers must engage in the interactive process.
At the 2017 SHRM Conference & Exposition, Pavneet Singh Uppal and Shayna Helene Balch, partners with the Fisher & Phillips LLP law firm, offered a step-by-step guide to the interactive process.
From discussion to decision
The five-step process includes:
1 Discuss the problem with the employee and, if necessary, obtain documentation. The critical initial step involves determining the “essential functions” of the position and talking about the disability they’re seeking an accommodation for. Employers have a duty to identify the essential job functions, and employees have the burden to show they can perform all of those essential functions.
There are a few specific questions employers can ask health providers to determine whether the employee is truly “disabled” under the ADA:
- Does the patient have a physical or mental impairment? If so, please state the type of impairment.
- Does the patient’s impairment substantially limit any major life activities. If so, which major life activity or activities are limited?
In addition, employers can attach the job description and ask the provider to assess the employee’s ability to perform the job responsibilities. Example: Attached is a job description for the [insert title] position. Please review the job description and assess whether the patient can perform all job functions? If so, which job functions cannot be performed, and why not?
Remember: Courts will defer to job descriptions if they were drafted before a problem arises. This is especially true when employers can describe the essential job functions of the position.
Another key question to ask of a provider: Would the patient’s performance of any of the job functions listed above result in a direct safety or health threat to this employee or other people (coworkers, patients, members of the general public, etc.)?
With this question, employers should get objective medical data supporting the direct threat.
2 Brainstorm about solutions. Here employers will want to identify the scope of potential accommodations. To do this:
- ask the employee for proposed accommodations, and
- assess the effectiveness each proposed accommodation would have in enabling the individual to perform the essential functions of the position.
3 Come to the decision. This step is all about selecting and implement the accommodation that is most appropriate for both the employee and the employer. Companies need to consider the employee’s preference while keeping in mind that the employer ultimately has the discretion to choose among various effective accommodations. Employees don’t have the prerogative to pick the option they like best, but the accommodation offered needs to be the “best” one available, provided its effective and reasonable.
4 Document the process. This is arguably the most important step of the entire process. After all, if employers can’t prove them in a court of law, none of the interactive process steps they took matter. If you have any doubts about whether or not to document something, it’s always safer to just do it. It’s better to have unnecessary documentation than not enough documentation.
5 Proceed with your decision as if someone will review every step. Employers should send the affected employee a letter using the phrase “interactive process.” This letter should explain the employee’s willingness to engage in an open dialogue and help both parties (employee and employer) reach a mutually beneficial resolution to the request. Firms should also ask employees to provide all available medical record that are relevant to the proposed accommodation.
Based on “The Employee Accommodation Conundrum Part 2: How to Handle Complex Accommodation Requests,” by Shayna Helene Balch and Pavneet Singh Uppal, as presented at the 2017 SHRM Conference & Exposition in New Orleans.