Suggestions for ADA Best Practices while Engaging in an Interactive Process with Employees?

The Americans with Disabilities Act (ADA) continues as a significant area of liability for employers. The Ninth Circuit has made it very clear that participating in a good-faith interactive process dialogue is an absolute requirement under the ADA. Employers who fail to do so will be liable for failing to provide reasonable accommodation.

Step 1 – Create a policy. Don't hide your interactive process requirement, rather publicize it. Inform your employees that a requirement of the ADA is that both parties communicate in good faith regarding reasonable accommodations. At a minimum, tell employees that if they request an accommodation, you will review their job description with them, determine the difficulties that their disability causes in their performance of the essential job functions, and brainstorm over accommodations that you can provide to assist them.

Step 2 – Review your job descriptions. For our purposes here, check that you have accurately described the essential job functions in both your job description and any advertisement or job posting for the position. The ADA regulations provide the following considerations in determining whether a job duty is essential:

·        The reason that the job exists is to perform that duty;

·        A large percentage of work time is spent performing the duty;

·        There are no (or a limited number of) other employees available to perform the duty;

·        The worker is hired for his or her expertise and the work is highly specialized;

·        The employer judges the job duty to be essential to perform the job;

·        Serious consequences would occur if the duty were not performed;

·        The job duty is required by the terms of a collective bargaining agreement; and

·        Individuals in that job in the past performed the duty.

Step 3 – Train your supervisors to recognize an accommodation request. Accommodation requests are not always obvious. There is no requirement that an employee requests an accommodation in writing. A statement by an employee that he or she is having a problem performing their job because of a medical condition is likely sufficient to constitute an accommodation request. It is best practice to train your supervisors to act on this.

The EEOC provides the following examples of accommodation requests:

·        An employee tells his supervisor, "I'm having trouble getting to work at my regularly scheduled starting time because I am undergoing medical treatments."

·        A new employee, who uses a wheelchair, informs the employer that her wheelchair cannot fit under the desk in her office.

However, a simple request for a new chair, or some other request, without information that the need is related to a medical condition is probably not sufficient to be an accommodation request.

Step 4 – Arrange a personal meeting with the employee. This is the heart of the interactive process. There may not always be the necessity for a lengthy meeting. If the supervisor who is asked for accommodation can easily provide one, then he or she should do so as soon as possible. However, to establish that you have engaged in good faith in the interactive process, best practice is to schedule a meeting with the employee, the employee's supervisor and someone from HR. A primary goal of this meeting is to determine what problems the employee is having in performing their job tasks because of a disability.

This entails soliciting ideas from the employee about what you could provide that would enable the employee to perform his or her job duties. In addition to soliciting ideas, you may also suggest solutions. The purpose of this brainstorming meeting is to come away with suggestions to enable the employee to continue working.

In choosing the accommodation, it is a good idea to understand the employee's preference, but the employee does not get to choose the accommodation – the employer does. The law requires only that the accommodation be reasonable. Eliminating the requirement to perform an essential job function is not a reasonable accommodation. The employee must still be able to perform the essential job function with accommodation. Examples of reasonable accommodations include:

·        Job restructuring

·        Equipment (i.e., sit-stand desks, lifting mechanisms, carts, new chairs, modified work stations, etc…)

·        Leave of absence

·        Change in work schedule

·        Job reassignment to an available and suitable job

·        Modified workplace policies

Step 5 – Consider whether you need information from the employee's physician. Depending on the complexity of the issue, you may want to communicate through the employee with their physician to obtain information about the restrictions caused by the medical condition and any suggested accommodations.

Step 6 – Continue the dialogue. The interactive process does not end with the interactive process meeting. Once you have found and implemented a reasonable accommodation, the best practice is to follow up with the employee on a regular basis to ensure that the accommodation is effective. It is often common that the first accommodation will not be effective, and you need to try something else. Your workplace policy should inform the employee that they must inform their supervisor if the accommodation is not effective.

Document the process. Document every step throughout the interactive process. Even though documenting short conversations between the supervisor and the employee may seem trivial, when it comes to defending a claim that you did not provide reasonable accommodation this information is crucial. Document every conversation and the entire process. Keep the documentation in the employee's confidential medical file, not the personnel file.

To conclude, the interactive process is important and often missed obligation within the ADA. Employers who follow these suggested steps and best practices and who document their process will be in a better position if they are subject to an administrative charge or suit for failure to accommodate. Please visit our site www.ergonomicworks.com, and let us know how we can assist you.