HR Support on the ADA Interactive Process

Editor's Note: Be sure to engage in the ADA's interactive process.

Melissa S. BurdorfOverview: The interactive process is vital to compliance with the Americans with Disabilities Act (ADA). Once an employer is aware that an employee has a disability under the ADA and the impairment is affecting the employee's ability to perform the essential functions of the job, the employer should conduct an individualized assessment of the employee to determine whether a reasonable accommodation would help the employee perform the essential job functions.

As part of this assessment process, the ADA requires that an employer engage in a timely, good-faith and meaningful interactive discussion with the employee to identify and assess any potential reasonable accommodations for overcoming the employee's limitations, taking into consideration the employee's preference and any other effective accommodations.

The interactive process is fluid. It does not end when an employer provides an accommodation to an employee. Rather, the employer should periodically check in with the employee to make sure that the accommodation provided is still sufficient, helpful and/or necessary. The interactive process also does not end if the employer determines that the employee's requested accommodation is unreasonable. The employer and employee should continue to assess other accommodation options.

An employer should anticipate that at some point it may be necessary to prove the reasonableness and timeliness of its actions. Therefore, an employer should make sure to tackle the interactive process with good intentions; however, if the process breaks down, the employer should document all of its efforts in a factual, accurate and complete manner.

Trends: The definition of disability has been greatly expanded on the federal and state level. Therefore, the emphasis for employers should no longer be on whether the individual is disabled, but rather on whether the employer is able to provide a reasonable accommodation to the employee.

The Equal Employment Opportunity Commission (EEOC) is aggressively pursuing employers that discriminate against individuals with disabilities. For example, the EEOC has targeted several employers that have "no fault" leave or attendance policies under which an employee is automatically terminated if he or she cannot return to work immediately after taking the maximum amount of leave provided by the policy. The EEOC has stated that these policies run afoul of the ADA's protections because they fail to incorporate an interactive process to assess whether additional leave may be a reasonable accommodation under the ADA.

Also, the EEOC frowns upon 100 percent healed policies, which require employees returning from a workers' compensation injury to be 100 percent fit before they can return to work. Strict adherence to these policies may also run afoul of the ADA's protections because the employer is not engaging in an interactive process and considering an employee's request to return to work on a case-by-case basis.

Author: Melissa S. Burdorf, JD, Legal Editor

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