When an employee requires an accommodation in order to perform his job duties, an employer is generally required to engage in a discussion with the employee (called the “interactive process” in legalese). However, the law is far from clear as to when an employer (or an employee) has met the obligation to discuss with an employee about a potential accommodation. Two recent decisions out of the 2nd Circuit and the 11th circuit provide additional insight on the interactive process.
What is the Interactive Process?
The interactive process is the legal term for the “negotiation” between an employer and an employee to evaluate the employee’s essential job functions, how the employee’s disability is affecting an employee’s ability to perform the essential job functions, and possible accommodations which would help the employee perform those essential job functions.
The law itself does not identify who needs to do what, but the cases have made it clear that both the employee and employer have obligations to engage in this discussion and the failure to attempt all can be fatal to one side or the other in a lawsuit under the Americans with Disabilities Act.
What is a Reasonable Accommodation under the ADA?
The regulations define “reasonable accommodation” as “any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.” 29 C.F.R. pt. 1630 app. § 1630.2(o). The EEOC identifies three types of reasonable accommodations:
(i) modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; or
(ii) modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or
(iii) modifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.
However, not all accommodations are reasonable, and the EEOC describes the requirement as
A modification or adjustment is “reasonable” if it “seems reasonable on its face, i.e., ordinarily or in the run of cases;” this means it is “reasonable” if it appears to be “feasible” or “plausible.”An accommodation also must be effective in meeting the needs of the individual. In the context of job performance, this means that a reasonable accommodation enables the individual to perform the essential functions of the position. Similarly, a reasonable accommodation enables an applicant with a disability to have an equal opportunity to participate in the application process and to be considered for a job. Finally, a reasonable accommodation allows an employee with a disability an equal opportunity to enjoy the benefits and privileges of employment that employees without disabilities enjoy.
Finally, an employer need not provide an accommodation to an employee if it is an “undue hardship” to the employer. An undue hardship is evaluated on a case-by-case bases, but include changes that are costly, difficult to implement, disrupt businesses, impact employee morale, and a host of other potential “hardships” an employer may claim.
What did the 2nd and 11th Circuit Say about an Employer’s Obligations under the Interactive Process?
The Second Circuit held that IBM was not required to provide captions to video files and transcripts of important meetings immediately to a deaf software engineer. In short, the Second Circuit held that an employer is not required to propose a “perfect accommodation” only one that is effective. Moreover, an employer is not required to continue to negotiate with an employee in the interactive process once a “reasonable” and “effective” accommodation has been proposed.
The 11th circuit concluded that because the employee never requested a specific accommodation (which may have been reasonable) to her employer, the employer’s obligations to engage in the interactive process were never triggered.
What Does This Mean
It is important for both employees and employers to be mindful of the requirements to engage in the interactive process when an accommodation may be required. An employee should always be prepared to provide specific accommodations to an employer and the employer should adequately evaluate those proposals. However, the employer can and often should suggest alternatives that will enable the employee to perform the essential job functions.
If you believe you need an accommodation under the ADA or returning to work from FMLA leave and have questions contact the employment attorneys at Maduff & Maduff today.