Accommodating Disabled Employees: A Guide To The Good Faith Interactive Process

Thursday, November 1, 2007 - 01:00

Companies striving for progressive, employee-friendly policies in today's business environment commonly seek to achieve a diverse workforce. These diversity initiatives, which are inspired by both business sense and moral imperative, focus in part on persons with disabilities.In fact, recent studies have shown that disabled workers comprise up to fourteen percent of the overall United States workforce. This presents unique challenges for companies, as even the most conscientious employers may have difficulty navigating the myriad requirements set forth in the federal and state statutes governing disability in the workplace.And the consequences of failing to comply with these laws and regulations can result in significant liability. To protect against these risks and prevent liability, this article sets forth some simple strategies for dealing with disabled employees.

The Americans With Disabilities Act And The Interactive Process

The Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C.12101 et seq. , requires a company to "reasonably accommodate" the known physical or mental limitations of an "otherwise qualified individual" unless the company can demonstrate that providingaccommodations would impose an undue hardship on its business operations.An "otherwise qualified individual" is an employee who can perform the "essential functions" of the relevantposition either with or without reasonable accommodations.

To avoid liability for failure to accommodate, the ADA instructs employers to initiate an "informal interactive process" with a disabled employee who requests an accommodation in an effort to identify the precise limitations resulting from the disability and the potential reasonable accommodations that would allow the employee to perform his or her job. The process must be interactive because each party holds information the other does not have or cannot easily obtain.

The courts have established that a disabled employee must demonstrate the following factors to show that his or her employer failed to participate in the interactive process: (1) the employee was disabled and the employer knew about the disability; (2) the employee requested an accommodation or assistance for his or her disability; (3) the employer did not make a good faith effort to assist the employee in seeking accommodations; and (4) the employee could have been reasonably accommodated but for the employer's lack of good faith. Satisfaction Of The Duty To EngageIn The Interactive Process

Perhaps the most difficult and elusive question for employers is how to demonstrate good faith engagement in the interactive process. The interactive process requires a great deal of communication between the employee and employer, and neither party is permitted to cause a breakdown in the process for purposes of either avoiding or imposing liability on the other.Thus, a party that obstructs or delays the interactive process does not act in good faith. Likewise, a party that fails to communicate, either by initiation or response, may also be acting in bad faith.The court is responsible for isolating the cause of the breakdown and assigning responsibility.

The duty to engage in the interactive process is clearly triggered when an employer has notice of an employee's disability and the employee requests an accommodation. Significantly, though, an employee's accommodation request need not be explicit, and an employer must commence the interactive process as soon as it knows of both the disability and the employee's desire for an accommodation. While the employee has the initial burden of expressing the desire for an accommodation, the employee generally need not request a specific accommodation.Even if the employee requests an accommodation that is impossible, unreasonable, or unavailable, the employer still has a duty to interact with the employee once a request is made.

As the Third Circuit explained in Taylor v. Phoenixville School District, 184 F.3d 296 (3d Cir. 1999), employers can demonstrate good faith interaction in a number of ways, including by meeting with the employee who requests an accommodation, requesting information about the condition and the employee's limitations, asking the employee what he or she specifically wants, showing some sign of having considered the employee's request, and offering and discussing available alternatives when the request is too burdensome. It is clear that an employer avoids liability by virtue of its good faith interaction in the process itself, as opposed to the end result achieved. Moreover, the interactive process does not require unilateral acquiescence to an employee's every demand. An employer cannot be faulted if it engages in the interactive process in good faith and offers an accommodation that the employee refuses, so long as the accommodation offered was reasonable.

Reasonable AccommodationsUnder The ADA

Indeed, the duty to provide a reasonable accommodation is subject to limitations, and not every proffered accommodation is considered reasonable. Examples of accommodations that may, in fact, be reasonable under the ADA include job restructuring, part-time options, modified work schedules, reassignment to a vacant position, acquisition of special equipment or devices, and appropriate adjustments or modifications of examinations, training materials, or policies.

On the flip side, it is not reasonable to require an employer to accommodate an employee where the accommodations, if implemented, still do not enable the employee to perform the essential functions of his or her job. For example, attendance is generally an essential function of any job. Therefore, while an employer may be required to accommodate a reasonable number of absences or a modified work schedule, it need not accommodate substantial and unpredictable absences. Similarly, an employee who cannot work and claims total disability may not assert an ADA claim because there are no possible accommodation that would permit him or her to perform the "essential functions" of the job.

In addition, an employer is not required to fundamentally alter the nature of a job, to eliminate an essential job function, to create a new employment position, or to transform a temporary light duty position into a permanent position, in order to accommodate an employee with a disability. Similarly, the ADA generally does not require an employer to reassign an employee to a vacant position if doing so would violate seniority status or a merit-based policy.However, it is important to keep in mind that the United States Supreme Court held in US Airways Inc. v. Barnett, 535 U.S. 391 (2002), that an exception to such a policy might be required if there are special circumstances demonstrating reasonableness, such as if exceptions were made for other employees.

Moreover, an employer cannot avoid liability by claiming that a job function is essential when, in fact, it is not, as courts commonly evaluate the reasonableness of such assertions. For example, in Lovejoy-Wilson v. Noco Motor Fuel Co. , 263 F.3d 208 (2d Cir. 2001), the Second Circuit held that a store failed to accommodate an epileptic employee who could not drive by denying her a promotion to assistant store manager on the basis that a valid driver's license was not essential to the job. However, in the case of truly essential job functions, the termination of an employee who cannot perform these essential duties is not unlawful under the ADA.

Finally, as a result of the interactive process, a company is not required to agree to an accommodation if it would inflict an undue hardship on its business operations. For example, while a reasonable accommodation may be to permit an employee to come in an hour late, this could constitute an undue hardship if a small business has no other employee available to help customers during that hour. Likewise, an accommodation is not reasonable if it would pose a "direct threat" to the safety of the employee or others.

Keys To Avoiding Liability For Failure To Engage In The Interactive Process

In light of the foregoing, the following guidelines will help you to avoid liability for failure to engage in the interactive process or to provide reasonable accommodations:

If you become aware that an employee has a disability that affects certain job duties and that the employee desires some type of accommodation or assistance, you should promptly begin communicating with the employee to identify the precise limitations resulting from the disability and potential reasonable accommodations. Do not rely on the employee to ask for a particular accommodation, and do not think that your duty ends if the employee suggests an unreasonable accommodation.

Do not assume that merely including a responsibility in a written job description will conclusively prove that the responsibility is an "essential" job function. At the same time, omitting a function from the description may support an employee's claim that it is not essential. Be careful to accurately list job duties in written job descriptions.

You may have to relax certain policies as a reasonable accommodation and should at least be willing to engage in good faith as to that possibility. However, this does not mean you have to create an entirely new position or accommodate an employee who cannot attend work on a regular basis.

If you conclude that there is no position that could accommodate the employee and permit her to perform the essential functions of her job, or that accommodating the employee would impose an undue hardship on your business operations, explain this to the employee in detail and document the process you undertook to obtain that result.

Before terminating a disabled employee, make sure your good faith efforts are well documented.

In the current legal landscape, these strategies are critical to helping companies to comply with the ADA and avoid liability for disability discrimination for failure to engage in the interactive process.

Christine A. Amalfe, Partner, chairs the Employment Law Department of Gibbons P.C.She can be reached at (973) 596-4829. Megan Frese Porio is an Associate in the Employment Law Department of Gibbons P.C.She can be reached at (973) 596-4491.

Please email the authors at camalfe@gibbonslaw.com or mporio@gibbonslaw.com with questions about this article.