By: Meaghan Kramer*
In honor of the Americans with Disabilities Act’s (ADA’s) 30 Year Anniversary, the ACDL is posting a five-part series to educate Arizonans with disabilities about their rights at work. Today’s post is part four of this series, and discusses how to engage in the interactive process under the ADA.
For many employees with disabilities, no accommodation is needed to perform the essential functions of their job. However, the ADA requires employers to provide reasonable accommodations to employees or applicants with disabilities who need them, except when such accommodations would cause an undue hardship.
As soon as an employee or an employee’s representative notifies his or her employer about the disability and the desire for accommodation, the employer must initiate steps called the “interactive process” to explore possible accommodations. As one federal appeals court described it, once the employee explains that they have “a desire to remain with the company despite his or her disability and limitations,” the employer has a duty to engage in the “interactive process.”
What is the interactive process?
In most situations, both the employee or applicant and the employer have vital information to share to identify an effective accommodation that will work for that workplace. Employees and applicants have information about their disability, abilities, and limitation(s) and how they have adapted and modified tasks to overcome limitations. Employers tend to have access to more information about the job and job duties and can analyze the essential functions of the job and possible range of alternative positions or accommodations.
The interactive process allows employees and employers to communicate in good faith to find a reasonable accommodation that both: (1) allows the employee to perform the essential functions of his or her job, and (2) does not cause the employer undue hardship.
The EEOC has outlined the four steps critical to the interactive process. Once a request for a reasonable accommodation has been made, the EEOC requires an employer to:
- Analyze the particular job involved and determine its purpose and essential functions;
- Consult with the individual with a disability to ascertain the precise job-related limitations imposed by the individual’s disability and how those limitations could be overcome with a reasonable accommodation;
- In consultation with the individual to be accommodated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position and;
- Consider the preference of the individual to be accommodated and select and implement the accommodation that is most appropriate for both the employee and the employer.
The process requires timely and direct communication between the employer and the employee. While the employer has the responsibilities outlined above, the employee is also required to respond to necessary, requested information to the employer. Neither side should delay or obstruct the process.
If, during the process, the employer and employee identify more than one possible reasonable accommodation that would be effective for the employee, the employer should give consideration to the employee’s preference. However, the employer has the ultimate discretion to choose between effective accommodations based on cost or convenience. Accommodations are not effective if they do provide for unequal workplace opportunity or interfere with treatment or worsen a disability.
What should an employee say or do to trigger the interactive process?
There is no magic language that an employee needs to say to begin the interactive process. The employee simply needs to inform the employer of his or her desire to remain with the company despite his or her disability and limitations. If the employee is unable to communicate with the employer, a parent, spouse, or support person may make the request on their behalf.
A best practice for initiating the interactive process is for the employee to inform the employer, in writing, of his or her need for a reasonable accommodation. If the employee is not able to capture the communication in writing, the employee should make an effort to otherwise create a record of the communication.
If the employer has an ADA coordinator or a human resources department, it is best to communicate with that person. If not, the employee can simply send the communication to his or her supervisor.
While not required, in the first communication, the employee should try to confirm that the recipient of the email is the correct point person with whom the employee should begin an interactive process. Again, as a best practice, all communications with an employer about the interactive process should be either communicated in writing or otherwise memorialized after a meeting or phone call. If the interactive process reaches an impasse, or the employee later decides to use a legal or administrative process to resolve a dispute with the employer, a record of those communications is almost always helpful.
What can my employer ask me to provide during the interactive process?
When the disability or the need for an accommodation is not obvious, an employer may ask an employee/applicant for reasonable documentation about his or her disability and functional limitations.
“Reasonable documentation” does not mean the employee or applicant must provide the employer with their entire medical record. Generally, it means that the employer can only require the documentation that it needs to establish that the employee or applicant: (1) has a disability covered under the ADA, and (2) that the disability requires a reasonable accommodation.
If an employer asks for documentation, it is best to provide documentation from an appropriate medical professional, whose expertise relates to either the disability in question, the reasonable accommodation requested, or both. These may include but are not limited to: doctors (including psychiatrists), psychologists, nurses, physical therapists, occupational therapists, speech therapists, vocational rehabilitation specialists, and licensed mental health professionals.
Additional Resources
If you have questions about the ADA’s interactive process, you can review the EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship and the Job Accommodation Network’s Reasonable Accommodation Request Letter and Employee’s Practical Guide to Requesting and Negotiating a Reasonable Accommodation, or contact our intake department to do an intake.
This article is part of a five-part series that the ACDL is posting to educate Arizonans with disabilities about their rights at work. Check out our earlier Disability in the Workplace posts on the disabilities (blog #1) and employers covered by the ADA (blog #2), and reasonable accommodations (blog #3), and stay tuned for our future post which will include information about discrimination, harassment, and retaliation.
*Meaghan Kramer recently joined the Phoenix office of the Arizona Center for Disability Law. Before joining ACDL, Meaghan spent 9 years in private practice, where she focused on employment law and litigation.
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