Whether a company of 15 or 15,000 the ADA and the interactive process can be complicated, time-consuming, and confusing, particularly for those not dedicated to the complexities of the law and practice daily. As explained by the U.S. Equal Employment Opportunity Commission (EEOC – https://www.eeoc.gov/facts/ada18.html) “If you have a disability and are qualified to do a job, the ADA protects you from job discrimination on the basis of your disability. Under the ADA, you have a disability if you have a physical or mental impairment that substantially limits a major life activity. The ADA also protects you if you have a history of such a disability, or if an employer believes that you have such a disability, even if you don’t.” The ADA covers all employers with 15 or more employees and requires employers to provide reasonable accommodations to allow qualified applicants and employees to perform the essential duties of the job. The ADA is first and foremost a non-discrimination statute enacted by Congress which prohibits discrimination (any adverse job action) against qualified employees/applicants with disabilities.
The complexities and facts of the ADA could fill countless pages and require hours of study. For those without the next three weeks to devote to the ADA, we are aiming to provide basic ADA information to help organizations better understand when they may be faced with an ADA situation.
ADA Facts and Tips
ADA Facts and Tips
An employee has a disability if they have, have a record of having, or is regarded as having, a physical or mental impairment that substantially limits a major life activity. Major life activities may include, but are not limited to, walking, seeing, hearing, thinking, sleeping, eating, learning, concentrating, working, etc. As a general statement, most employers do not spend time or effort trying to dispute the existence of a disability because the definition of a disability covers a very broad spectrum. Instead, employers spend the majority of the time and effort focusing on the accommodation process. However, if an employer has a concern about whether a condition qualifies as a disability under the ADA, that employer should consult with a lawyer.
If an employer has knowledge of, should have reasonably known or is told by an employee they have a disability, the employer should engage in the ADA process and should do so prior to taking adverse employment actions which may be based upon a disability (i.e. decisions not to promote or train, demotion, termination, etc.).
Under the ADA, employees are protected from job discrimination, but they must be qualified to perform the essential functions or duties of their job, with or without reasonable accommodations. The employee must satisfy the requisite skill, experience, education, and other job-related requirements to be able to perform the essential functions of a position with or without reasonable accommodation. As an example, a bus driver who becomes blind would no longer be qualified to perform the essential function of driving with or without reasonable accommodation.
To assess potential reasonable accommodations the employer must engage in the interactive process to determine what, if any, reasonable accommodations may be available to assist the employee in performing the essential functions of his/her job.
Employers should have detailed and accurate job descriptions that outline the essential job functions, as well as physical and mental requirements. Job descriptions are a valuable tool in assessing reasonable accommodations.
Managers should be trained to understand how to recognize an ADA situation and when HR needs to be notified. For example, an employee shares that he has been struggling with migraines which makes it hard to be at work. In a kind and empathetic manner, the manager says how sorry she is for the employee and gives him permission to go home early. While the manager is kind, this response is not sufficient under the ADA and the manager needs to know that this comment needs to be passed to HR for further conversation. Managers don’t need to be experts, but they need to understand how to recognize situations that must be sent to HR.
Basic Steps to Engaging in the Interactive Process
The overall goal of the interactive process is for the employer to engage in a conversation with the employee to determine what accommodations the employee may need and to obtain the information necessary to assess reasonable accommodation.
Step 1 – Employer is put on notice of an employee’s disability and the potential need for accommodation. This notice may be through the employee notifying the employer, employer observations, or reports made by others. Employers must tread lightly as to not treat an employee as having a disability when one may not exist. Simply regarding an employee has having a disability entitles the employee to the protections offered under the ADA.
Step 2 – The employer and the employee meet, and the employer listens. The employer should actively listen and take notes as the employee explains his/her obstacles and possible ideas for accommodations. The employer does not need to have a solution at this point, but must openly listen to the employee.
Step 3 – The employer may request documentation from the health care provider based upon the situation. If the disability and reasonable accommodation are obvious the employer should not request medical information. For example, an employee in a wheelchair needing a ramp to access the workspace would be an obvious disability and accommodation assessment and further medical information would not be necessary.
Step 4 – The employer supplies the request for medical information to the employee along with a copy of the employee’s job description to provide to his/her health care provider.
Step 5 – The employer continues with the interactive process. The employer and employee discuss the medical information supplied by the health care provider (if applicable) and ideas the employee has regarding accommodations. The employer is not required to accept the accommodation suggested by the employee; the employer may also present accommodation ideas or alternatives, but the employer should first place the responsibility on the employee to present ideas he/she has before the employer starts contributing ideas/alternatives.
Step 6 – The employer considers the reasonableness of the request(s), considers alternative accommodations and continues the conversation with the employee. The interactive process is often an ongoing conversation as disabilities, conditions and the healing processes change. An accommodation which works one day may need to be reassessed another day. To successfully engage in the interactive process, employers must be flexible, open to listening to the employee and consider all options
(step 6 cont) for reasonable accommodations. Employers and employees should work together to find an accommodation that will be both reasonable for the employer and allow the employee to successfully perform his/her job. The accommodation isn’t always obvious and may take multiple conversations along with information from the health care provider. Employers do have the right to determine that any accommodations which would allow the employee to perform the essential functions of his/her job would pose an “undue hardship”. The courts don’t always agree with an employer’s determination of an undue hardship, and employers should fully exhaust the interactive process and have evidence to support their determination of undue hardship prior to making an adverse employment decision.
Step 7 – The employer should document the reasonable accommodation implemented, ensure those with authority over the employee’s position clearly understand how to follow the accommodation and periodically check in with the employee on the effectiveness of the accommodation.
As part of the ADA and interactive process, the employer must be very conscientious about how they conduct themselves. Conversations must be polite and respectful, and employers must actively listen to what the employee is saying. Employers can express their concerns without being disrespectful and would be wise to practice the conversations out loud before meeting with the employee. ADA claims often go downhill when employees don’t feel heard, respected, and cared for throughout the process.
There is not a one-size-fits-all approach to assessing reasonable accommodations and engaging in the interactive process. Employers must treat every situation individually and consider the specifics of each case in determining if there are reasonable accommodations that may be made.
Employers may, and should, request further information from the employee’s health care provider when the information is needed to support the existence of a disability and assess the types of accommodations that may be appropriate. The questions asked of the employee’s health care provider must be specific to the employee’s situation, only relate to the condition for which accommodation is sought (employers should not attempt to gather information related to other health conditions unrelated to the request for accommodation), and only seek to gather relevant information.
Helpful ADA Resources
Jan Accommodation Networkhttps://askjan.org/– The Jan Accommodation Network provides free and confidential guidance on workplace accommodations and disability employment issues. They have robust online resources ranging from customizable sample forms to analysis on a wide range of specific disabilities.
U.S. Equal Employment Opportunity Commission (EEOC) https://www.eeoc.gov/eeoc/publications/ada17.cfm – Publication by the EEOC addressing important facts about the ADA such as covered employers, covered employment practices, obligations to provide reasonable accommodations, etc.
Disability Management Employer Coalitionhttp://dmec.org/ – Membership-based organization focused on education for absence and disability management professionals.
FMLA Insights Blog by Jeff Nowak of Littler https://www.fmlainsights.com/ – Blog that addresses complex FMLA and ADA issues and provides real-world examples of workplace ADA situations.