Passed almost thirty years ago, the Americans with Disabilities Act (ADA) was the first comprehensive federal law that addressed the needs of individuals with disabilities by prohibiting discrimination in employment, communications, public services, and public accommodations. Modeled in large part after the Civil Rights Act of 1964, Title I of the ADA generally prohibited discrimination against employees with disabilities but also imposed additional obligations for employers to provide reasonable accommodations for their employees with disabilities.
Despite the important public policy behind the ADA and the general support it received, the ADA has proved to be one of the more difficult and time-consuming laws for employers from a compliance standpoint, and has garnered a sizable amount of litigation between employers and their employees. Even today, disability charges are the third most frequently filed claim at the Equal Employment Opportunity Commission (EEOC), following retaliation and sex discrimination claims.
Much of the litigation in the past decades has focused on whether the employee who was alleging disability discrimination was even entitled to protection under the law. In other words, was the employee “disabled” as defined under the ADA and thus entitled to a reasonable accommodation in the first place? After the U.S. Supreme Court came out with a trio of decisions narrowing the definition of disability, holding that individuals who effectively controlled their conditions (e.g., diabetes, cancer, or epilepsy) may not be disabled and entitled to reasonable accommodations, the ADA was amended in 2008 to expressly reject the Supreme Court’s decisions. The amendment expanded the definition of “disabled” under that law to provide a much broader scope of protection for employees.
Called the Americans with Disabilities Act Amendments Act (ADAAA), the amendments to the law and the regulations that followed provided that the definition of disability be construed broadly and that the determination of a disability should not require an extensive analysis. The practical effect of the ADAAA was that many more employees were entitled to protections under the law, including (but not limited to) reasonable workplace accommodations absent undue hardship. As a result of the increase in requests for reasonable accommodations, employers have had to spend much more time on compliance related to the “interactive process” that generally must be engaged in after such a request is made by a disabled employee.
Neither the statute nor the regulations clearly define the interactive process despite its importance to both employers and employees. The regulations provide that:
To determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate an informal, interactive process with the individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.
Reasonable accommodations can include a myriad of adjustments, modifications, or changes to the workplace. Some examples noted in the regulations include making facilities or equipment accessible and usable, job restructuring, and modified schedules. But how does an employer know which reasonable accommodation should be provided? Or whether the reasonable accommodation requested is likely to assist the employee in overcoming a barrier caused by his or her disability? To answer these questions, the employer should engage in a robust interactive process before approving or denying a requested reasonable accommodation.
The easiest way to begin the interactive process is to talk to the employee who has requested the accommodation. Having an informal discussion with the employee about his or her request is a great way to start the process and ensures that the process is interactive. Although the ADA does not proscribe the use of any forms or documents that must be used in conjunction with the employee’s reasonable accommodation request, employers should consider documenting the employee’s requested accommodation and discussions with the employee, and then determine whether they need medical information to substantiate the condition and determine the effect of that condition on the employee’s ability to perform his or her essential job functions.
So long as the disability is not known or obvious, employers are allowed to ask employees for medical documentation about the employee’s disability and the functional job limitations when the employee requests a reasonable accommodation. Doing so is not required by the ADA but is recommended, because the documentation both provides evidence for the employer’s participation in the interactive process and increases the chances that a reasonable accommodation may found that works for both the employer and the employee.
Of course, there’s no guarantee that engaging in an interactive process will always result in a positive outcome that works for both parties. Not every reasonable accommodation requested is actually reasonable. And as previously noted, employers do not have to grant a reasonable accommodation that would cause an undue hardship to the business. That said, employers who deny a request and fail to engage in the interactive process, who fail to effectively document their compliance with this important step, or who fail even to recognize that a reasonable accommodation is being requested by their employee will face an uphill battle if and when the employee files a claim alleging an employer’s failure to accommodate.
Janice Pintar has extensive litigation experience in the field of employment law and was a plaintiff’s attorney for nearly thirteen years before joining Associated Financial Group‘s HR Consultants in 2015. She educates and advises human resources professionals and employers on a broad range of employment issues and best practices and costly litigation compliance topics. She can be reached at Janice.Pintar@associatedbank.com.