Employers ought to consider the process of how they interact with their disabled employees. As Fisher Phillips’ Devin Rauchwerger writes, good-faith exchanges and an open description of the job’s essential functions can go a long way toward decreasing employers’ risk of liability from disability discrimination lawsuits.
Understanding how to properly engage in the interactive process with a disabled employee will substantially reduce your company’s risk associated with disability discrimination lawsuits. Unfortunately, plaintiffs’ counsel love disability discrimination cases for several reasons. Opposing counsel can often point to a specific time when the employment relationship changed after the person either became disabled or revealed their disability to the employer. This is different than a race or gender discrimination case where the employer has knowledge of the employee’s protected category from the beginning.
It is difficult to argue that an employer hired a person of a specific race and then terminated them because of that same characteristic. It is easier to convince a jury that an employer terminated someone because they suddenly became difficult to deal with due to their disability. Furthermore, there is typically little dispute over whether the employee’s condition qualifies as a disability under the Americans with Disabilities Act (ADA), given the broad definition. Finally, disability cases tend to contain more written documentation than other types of cases. This can be a positive if the employer is properly documenting the interactive process, but this often does not happen. Instead, there is typically enough documentation (often through doctor’s notes) to demonstrate the employer was put on notice of the disability, but insufficient documentation that the employer engaged in the interactive process. Following the steps outlined here will help your company better defend itself from a disability discrimination lawsuit or potentially avoid them altogether.
The Interactive Process
An employer must engage in the interactive process with a disabled employee, which involves a good-faith exchange of information to explore an employee’s need for an accommodation. The interactive process should be handled by someone in the company’s human resource department or a centralized person/department, as opposed to individual supervisors, to ensure a standardized system and protocol regardless of the situation. Supervisors must be instructed to notify HR as soon as they learn of an employee’s need (or potential need) for an accommodation.
How do you know when to engage in the interactive process? The employee does not need to use any magic word such as “disability” or “reasonable accommodation” to trigger the process. Some examples of situations that could trigger the interactive process include:
- an employee who previously had no attendance issues suddenly starts missing a substantial amount of time from work;
- a competent employee suddenly makes several mistakes and brings to a manager’s attention that something physical or mental is causing the mistake; or
- an employee mentions something in the work environment is causing them physical discomfort.
The employer could also be put on notice based on a fellow co-worker or family member who provides notice of an employee’s potential disability. The takeaway is the employer cannot bury its head in the sand; the employer must often draw inferences from statements made by the employee (or a third party) that could lead to the need for the interactive process.
Once the employer is put on notice to engage in the interactive process, they should immediately provide a written communication to the employee inviting/opening the interactive process. The writing should state that the purpose of the letter is to initiate the interactive process with the employee, include a summary of the reasons for initiating the interactive process, request an in-person meeting and give the employee sufficient time to respond. If the employee files a lawsuit and claims the employer failed to engage in the interactive process, this writing becomes the first exhibit to your defense.
Essential Functions of the Job
Prior to meeting with the employee, the employer should have a clear understanding of the essential functions of the employee’s position. This is important, because the purpose of providing a disabled employee with a reasonable accommodation is to permit them to perform the essential functions of their job.
A job function might be considered essential for several reasons, including:
- the reason the position exists is to perform the function in question;
- there are a limited number of employees who can perform the job function; or
- the employee was hired for their expertise or ability to perform a specialized function.
A written job description prepared ahead of time can be used as evidence of what the employer considers an essential function of the job. However, the job description is not dispositive. A court will also consider additional factors, like the amount of time spent performing the function; the actual work experiences of current and former employees in the same position; and/or references to the importance of the job function in performance reviews.
Thus, if an employer’s job description states that an essential function of the job is to lift 100 pounds, but employee experience demonstrates that someone in that position is never required to lift more than 25 pounds, a court is unlikely to conclude that lifting 100 pounds is an essential function.
As part of the interactive process, at the in-person meeting with the employee, the parties should discuss and agree on the essential functions of the position, explore and understand the employee’s need for an accommodation and request appropriate medical documentation to support the need for accommodation. The employer should send a summarizing correspondence to the employee after the meeting to confirm in writing everything that was discussed and next steps.
Medical Records and Documentation
Often the employer will need medical documentation to understand the employee’s restrictions. Medical documentation is sufficient if it describes the nature, severity and duration of the impairment, as well as the type and extent to which certain activities are limited.
Medical documentation should not provide the actual diagnosis for the employee. The documentation may be insufficient if it:
- is provided by a health care professional who lacks the requisite expertise (e.g., a psychologist opining on back limitations);
- fails to specify functional limitation from the disability; or
- suggests the information is not credible or fraudulent.
If medical documentation is insufficient, the employer should permit the employee the opportunity to correct the documentation. If all other steps fail, the employer may request (at its own expense) a medical examination. However, you should check with a local employment attorney to determine if a medical examination is appropriate (and lawful) in your specific situation.
What types of accommodations are considered reasonable? Generally, reasonable accommodations include:
- improved access to facilities,
- different work tools/devices,
- modified work duties,
- modified work schedule,
- service animals,
- providing qualified readers/interpreters,
- adjusting examination/training materials,
- transfer to a vacant/open position (but only if there is no available accommodation that will permit the employee to remain in the same position), and
- transfer to a lesser job (but only if a similar, vacant position is unavailable) or an unpaid leave of absence (but only when no other accommodations will permit the employee to remain in their position).
The employer is not required to create a new position, eliminate essential job functions, transfer the employee to a different supervisor or excuse misconduct.
When choosing an appropriate reasonable accommodation, the employer is not required to select the employee’s requested accommodation if there are multiple accommodations that will permit the employee to perform the essential functions of the job. However, the employer should have a valid reason for not selecting the employee’s requested accommodation. On the other hand, the employer cannot solely rely on the employee to identify a reasonable accommodation. The employer is typically in a better position to suggest possible accommodations and should continue to engage in the interactive process even if the first attempted accommodation is unsuccessful.
Finally, an employer is not required to provide a reasonable accommodation if doing so would cause an undue hardship on the business or present a direct threat to the health and safety of any employee or customer. These exceptions are extremely difficult for the employer to meet and should not be relied upon without first consulting with your employment attorney.
Taking the actions discussed above will help ensure your company is protected against disability discrimination lawsuits.