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 functions of his or her job.

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 and identify any potential accommodations, considering 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, an employer should periodically check in with an employee to make sure that the accommodation provided to the employee is still sufficient, helpful and/or necessary.

An employer should anticipate that at some point it may be necessary to prove the reasonableness and timeline of their 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 its efforts in 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 whether the individual is disabled, but rather whether the employer is able to provide a reasonable accommodation to the employee.

The 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, where an employee is automatically terminated after being on leave for a certain period of time. 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, definite leave may be a reasonable accommodation under the ADA.

Also, the EEOC frowns upon 100% healed policies - these policies require employees returning from a workers' compensation injury to be 100% fit before they can return to work. Strict adherence to these policies can also run afoul of the ADA's protections because the employer is not engaging in an interactive process - 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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