ADA INTERACTIVE PROCESS: AVOID THESE COMMON MISTAKES
The Americans with Disabilities Act (ADA) prohibits discrimination against people with disabilities in several areas, including employment, transportation, public accommodations, communications and access to state and local government’ programs and services. As it relates to employment, the ADA protects both employees and applicants for employment.
Covered employers (15 or more employees) are required to provide reasonable accommodations to qualified job applicants and employees with disabilities unless doing so would impose an undue hardship on the employer. To determine whether a reasonable accommodation can be made, employers should engage in the interactive process. The interactive process requires a good faith effort by the employer and the employee to discuss any limitations the disability may impose and possible solutions that would allow the employee to perform the essential functions of the job.
The interactive process is informal and isn’t intended to be very complicated. However, employers often find themselves making common mistakes, which break down the process and often lead to claims of discrimination. Here are the most common mistakes and how to avoid them.
Failing to Initiate the Interactive Process
While an employer generally doesn’t have to provide a reasonable accommodation unless an individual with a disability asks for one, the employer doesn’t need to wait on the job applicant or employee to “use the magic words.” It is rare for employees to be well versed in the ADA to know they need to ask for an accommodation if one is needed. Employers should be proactive. Do not wait. If there is any indication that an accommodation may be needed, the employer should initiate the interactive process and ask if an accommodation is needed.
This can be the hardest part for employers — knowing when to start the interactive process. However, it is always best to err on the side of caution and inquire whether an accommodation is needed (and desired) rather than wait and risk a claim of disability discrimination.
Resisting or Ignoring the Process
Sometimes recognizing or acknowledging that a request for accommodation has been made is what gets employers into hot water. An employee has expressed that he or she needs help or that he or she has a limitation in performing the essential functions of the job, but nothing is done to assist the employee. It might be purposeful — the employee may be a poor performer or difficult to manage, so his/her supervisor doesn’t want to acknowledge the request or believes the employee is just making excuses for his or her poor performance. It might be completely inadvertent — the supervisor or manager doesn’t recognize that the employee’s statement is a request for accommodation. Again, there are no magic words, which is why this is hard.
If an employee is asking for help, do everything you can, as an employer, to help them. Recognize when an employee might need help and offer assistance. Have the conversation, learn if an accommodation is needed, and determine whether an accommodation can be made. The worst thing an employer can do is ignore an employee who is requesting an accommodation.
Inadequate Training on ADA & Reasonable Accommodation
Failing to training supervisors and managers to recognize when the protections under the ADA might apply makes it more likely that they will do or say something that results in a claim against the company. Employers should never assume that their managers or supervisors know how the ADA (or any employment law) applies to their role as a supervisor or manager. Training is important because there is no clear event or statement that triggers the interactive process. Supervisors should be well versed in the ADA to know when it’s time to get HR involved.
Over Complicating the Process
Often the simplest solution is overlooked. When a request for an accommodation is made, supervisors get bogged down by the legality of it all and make an otherwise simple solution overly complicated. As an example, let’s say an employee comes to her supervisor and states that she has several doctor’s appointments during the next month to deal with an on going issue and needs to come in two hours later than her usual shift on those days. What should the supervisor do? The simplest solution, assuming it wouldn’t cause an undue burden, would be to allow her to have the time off for her appointments. This still involves the interactive process; the supervisor will want to know what days the employee will be in late, how many days over the next month the employee will need to come in late, etc. to determine the easy solution will work or if other arrangements must be made.
If there is a simple solution to the request, that is when supervisors and managers should seek out assistance from HR and possibly legal to determine the right course of action.
Too Much Information
When it comes to the interactive process and reasonable accommodation, too much information can be requested or divulged leading to problems. Employers only need enough information from the employee to know (1) the employee is a qualified individual with a disability, and (2) the employee needs an accommodation to allow him or her to do the job. That’s it.
Failing to Document
Document. Document. Document. If it isn’t documented, it didn’t happen.
Employers should always document the interactive process from start to finish — when did the employee come to you regarding an accommodation, what did the employee say, what possible accommodations were discussed, what was the ultimate decision regarding accommodation. If you are unable to accommodate, it will be on you to show that you did everything you could, considered all possible solutions, etc. Documentation helps you, as the employer, prove your case. If you are alleging undue burden, documentation will help you articulate why you have met that standard.
Documentation also helps to ensure all parties are on the same page. When you meet with an employee regarding a request for reasonable accommodation, a written follow up is a good way to confirm the content of the conversation to ensure all parties are in agreement about what was discussed and what decisions were made, if any. The last thing you want is to have conflict versions of events and no support for your version.
Not Doing Enough
Often employers fail at the interactive process because there don’t invest enough time looking into all possible options when it comes to reasonable accommodation. Consider all possible accommodations, not just the most common or the easiest to implement. If you ultimately decide that no accommodation can be made, you will want to be able to show that you considered all available options and could not make any of them work.
The Job Accommodation Network (JAN) is a great resource for employers who are all out of ideas on how they can accommodate an employee’s disability.
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