The ADA’s interactive process has been one of the more vexing aspects of employment law recently.
Not only has the EEOC ramped up its oversight of this complex area, but the regulations surrounding the interactive process don’t paint a black-and-white picture of what exactly employers need to do.
Interactive process: a definition
As you know, the need to initiate the interactive process with an employee occurs when an employer first finds out that the employee is suffering from a disability that may affect the person’s ability to perform his or her job.
In a nutshell, the process requires the employer to “interact” with the employee in an attempt to seek out a reasonable accommodation for the disability that would allow the employee to continue to perform the essential functions of his or her job.
The problem is, the EEOC has said the process will likely be different for every employee. As a result, employers must approach it on an individual basis — no templates, scripts or specific step-by-step process instructions.
As a result, employers are struggling to know what they can and can’t do when an employee requests an accommodation (or when the potential need for one becomes known).
That’s where two sets of guidance issued by the EEOC recently can help. The agency released two documents addressing employees with HIV, an impairment that is specifically listed in the EEOC’s regulations as one that almost always constitutes a disability.
The two documents are:
- “Living with HIV Infection: Your Legal Rights in the Workplace Under the ADA,” and
- “Helping Patients with HIV Infection Who Need Accommodations at Work.”
The first is aimed at employees with HIV and describes their rights under the ADA, as well as how the accommodation process works. The latter is intended for physicians and explains their role in the accommodation process for their patients.
The benefit to employers
The beauty of these guides: While intended for HIV-positive employees and their doctors, they describe what the interactive process may look like.
And in doing so the guides reveal a lot about what employers can and can’t do when employees request an accommodation.
- You can ask an employee to submit a letter from his or her doctor documenting that he/she has a medical condition and explaining why he/she needs an accommodation.
- You cannot ask a doctor to disclose a patient’s detailed medical info without first obtaining a release from the employee/patient.
- You can ask an employee’s doctor if certain accommodations would be effective and/or would meet the employee’s needs.
- You can’t require a doctor to provide you with a specific diagnosis. It’s legally sufficient if the doctor only describes the condition in general terms, like “immune disorder.”
- You do not have to accept lesser-quality work from a disabled employee, assuming you sought a reasonable accommodation.
- Before terminating a worker due to a disability, you must have “objective evidence” that the person’s unable to perform his/her duties or would pose a significant safety risk, even with an accommodation.
- You can ask an employee’s doctor if the employee would be a safety risk, even with an accommodation.
- You can’t charge employees for the cost of any accommodations you provide.