What is the interactive process under the ada

Many employers would appreciate a clear road map when traveling the often winding roads of reasonable accommodations under the Americans with Disabilities Act (ADA).  However, there are no rigid routes for the interactive process.  After an employee requests an accommodation, the employer must engage in a good faith and flexible dialogue that addresses the employee’s specific medical limitation, request, job position, and work environment, among other factors.  That said, employers can find guidance in at least ten hard and fast rules on the reasonable accommodation process:

1. An employer’s statutory duty to provide reasonable accommodations may begin before the employment relationship even forms. If an applicant requests reasonable accommodations to enable participation in the hiring or interview process, an employer must provide an accommodation unless doing so poses an undue hardship.
2. Generally, an employer’s duty to engage in the interactive process is triggered whenever it learns that an employee needs an accommodation. Courts give employees wide latitude in how they make this known. The employee need not make the request in writing, identify a specific accommodation, or use specific terms such as “disability,” “ADA,” or “reasonable accommodation.”
3. To start the interactive process, the employer should gather information from the employee, including the specific nature of the limitation, the specific difficulty or issue that the employee is experiencing at work, and what sort of accommodation the employee is seeking.
4. An employer may require that the employee provide documentation from the medical provider most familiar with the employee’s disability in order to confirm the employee’s specific limitations and need for accommodation.
5. Once the employer receives this medical documentation, it should ensure that any subsequent requests for updated records are reasonable and do not create an undue burden on the employee. For example, rather than requesting updates on a weekly basis, an employer may seek updated medical information at a time that coincides with an employee’s next scheduled appointment if the doctor’s assessment may change at that time.
6. Employers should keep all information collected from employees about their disabilities and need for accommodations confidential. All medical documents should be maintained in a standalone file separate from the employee’s personnel file.
7. The employer should also be collecting information on its end as it reviews the information submitted by the employee. For example, the employer should be reviewing the essential functions of the employee’s position and the employee’s ability to perform those functions, and determining which reasonable accommodations, if any, would enable the employee to perform his or her job. An employer need not provide an immediate response to an employee’s request for accommodation, but it must address the request promptly and keep the employee informed of any updates in the process to ensure there is open communication. Document all communication throughout the interactive process.
8. The goal of the interactive process should be to allow the employee to perform his or her existing job through a reasonable accommodation. However, even if this outcome is unfeasible, the interactive process is not over. Employers should then consider if they can accommodate the employee through reassignment to a different vacant position for which the employee is qualified or through a temporary leave of absence.
9. An employee is entitled to a reasonable and effective accommodation – not necessarily the accommodation of his or her choice.
10. If an employer is able to reasonably accommodate an employee, it is advisable to keep the interactive process open even after the accommodation is implemented. The employer should reach out to the employee to ensure that the accommodation was provided as discussed and that it is indeed effective in enabling the employee to perform his or her job.

Title I of the Americans with Disabilities Act (ADA) prohibits employment discrimination on the basis of a disability and requires employers engage in an interactive process and provide reasonable accommodations. A failure to do so may result in liability.

The ADA requires employers to provide reasonable accommodations to qualified applicants or employees. A “reasonable accommodation” is defined as assistance or a change to a position or workplace that accommodates employees with disabilities so they can do the job without causing the employer undue hardship, such as too much difficulty or expense.

Use the Interactive Process to Determine Reasonable Accommodation

In order to determine the appropriate reasonable accommodation, employers and employees must engage in the interactive process, which requires communication and good-faith exploration of possible accommodations. An employer that acts in bad faith in the interactive process may be liable if it can be reasonably concluded that the employee would have been able to perform the job with a reasonable accommodation.

It’s a two-way street: an employee must also make a good faith effort to comply with any of the employer’s reasonable requests.

Steps of the Interactive Process

Step #1: Recognize the Accommodation Request

Every time an employee indicates he or she is having a problem related to a medical condition, the employer should consider whether that is a request for an accommodation.

Examples of an accommodation request could include the following:

• An employee needs to take time off but is not eligible under the Family and Medical Leave Act of 1993 (FMLA).
• An employee exhausts FMLA leave but needs more time off.
• An employee uses medical reasoning as an explanation for absences or performance issues (medication makes it hard to focus, needing extra breaks due to illness, etc.).

Step #2: Gather Information

An employer is entitled to know that an employee has a covered disability and any resulting limitations.  An employer can (and should) require that the employee provide documentation about the disability and any limitations from the employee’s healthcare provider, as well as the duration of any limitations.

Employers should specify the information they need from the healthcare provider, and review the employee’s essential job functions to determine if they will be impacted due to the employee’s limitations.

Step #3: Explore Accommodation Options and Choose an Accommodation

Employers should look to past practices to determine if and how a similar situation was previously handled. Also, it is acceptable to invite both the employee and the healthcare provider to submit accommodation suggestions and take them into consideration. The employer and the employee should interactively seek an “effective” accommodation (one that will allow the employee to perform the essential functions of the job, now or in the near further), that is “reasonable” under the circumstances.  Often, even before any undue hardship analysis, an employer may determine that certain requested accommodations are not “reasonable” and thus not required.  Seeking legal advice during this process is wise, but it is particularly important if an employer is considering rejecting a possible accommodation as “unreasonable” and not required.

If necessary, the employer should conduct an undue hardship analysis. Generalized conclusions will not suffice to support a claim of undue hardship; but rather, undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense. For example, a company may consider:

• The nature and cost of the accommodation needed.
• The overall financial resources of the facility making the reasonable accommodation, including the number of persons employed at this facility and the effect on expenses and resources of the facility.
• The overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity).
• The employer’s type of operation, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer.
• The impact of the accommodation on the operation of the facility.

Generally, if more than one effective reasonable accommodation applies, the employer may choose the accommodation with one exception: putting the employee on leave. If there is another effective accommodation, other than leave, that would enable the individual to keep working, then the employer cannot require that the individual take leave. However, if the employee has FMLA available, the employee generally is allowed to choose to take leave under the FMLA rather than accept transfer to another job.

If you have questions or would like further information on the ADA interactive process, feel free to contact the authors and subscribe to this blog for news, commentary and insights on the complicated and constantly changing labor & employment and employee benefits laws affecting employers.

Firm attorneys Bob Horton, Lymari Cromwell, Tim Garrett and Laura Mallory authored an article on this topic titled “Alcohol and Substance Use Disorder under the ADAAA,” that was published by HR Professionals on March 30, 2020. You can access the full article here.

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