This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Reston Town Center that specializes in federal employee, security clearance, retirement, and private sector employee matters. They write biweekly on RestonNow.
The Americans with Disabilities Act (ADA), and its amendments, requires employers to engage in a good-faith interactive process with employees who request a reasonable accommodation for their medical issues and disabilities. The interactive process is a collaborative effort by which the employer and employee informally discuss and identify the precise medical limitations of the employee and accommodations that the employer could potentially make to help the employee overcome these limitations.
The process may vary depending on how difficult or obvious it is to determine the accommodation. Some state disability laws impose similar obligations to the federal ADA requirements.
An employer’s obligation to engage with an employee in the interactive process arises when the employer becomes aware that the employee has a covered disability or medical issue under the ADA and requests an accommodation. The employee has a duty to inform the employer that he or she has a medical condition and request an accommodation for the job-related limitations imposed by his or her medical condition.
The employer should engage in the following interactive-process steps with the employee:
- Analyze the particular job at issue and determine the purpose and essential functions of the job.
- Consult with the employee to ascertain the precise job-related limitations imposed by the employee’s medical condition and how those limitations could be overcome with a reasonable accommodation.
- Consult with the employee to identify potential accommodations and assess the effectiveness each accommodation would have in enabling the employee to perform the essential functions of his or her job.
- Consider the preference of the employee, then select and implement the accommodation that is most appropriate for both the employee and employer.
A more detailed explanation of the interactive process is in the federal regulations (29 CFR §1630), but it is important to note that the interactive process requires the employer to assess both the job at issue, including the job’s actual duties and purpose, and the specific abilities and limitations of the employee. If the employer and employee have difficulties reaching a consensus on the potential accommodations, the Equal Employment Opportunity Commission (EEOC) advises parties to seek technical assistance from the EEOC, state or local rehabilitation agencies, or private organizations.
Both the employee and employer are responsible for advancing the interactive process through active participation. Notably, however, the employer is often in a better position to move the process along once the employee raises his or her need for a reasonable accommodation.
The ADA provides employees with a right to reasonable accommodation, but it does not provide a right to any specific or preferred accommodation. Employers are usually given some freedom of choice in this process, but they should choose effective accommodations. While it is important for the employer to work with the employee in finding a reasonable accommodation, the employer is usually given the ultimate or final decision regarding the accommodation.
Providing a reasonable accommodation does not necessarily end the employer’s interactive obligations. Employers should continue to monitor the situation to ensure that the accommodation is enabling the employee to perform the essential functions of his or her job. If the accommodation is not effective in eliminating workplace barriers, the employer and employee should resume the interactive process and continue their efforts to find an effective accommodation.
Keep in mind that an employer is usually not found liable for disability discrimination simply for failing to engage in the interactive process. The employee has the burden of showing that if the employer had fulfilled its duty of actively working with the employee, a reasonable accommodation would have been determined.
The ADA’s reasonable accommodation process can be very complex. Adopting and carrying out consistent policies for employees regarding these issues can help employers and employees minimize potential liability and litigation. If you are an employer or employee and need legal advice or representation regarding a reasonable accommodation or other discrimination or employment-related matter, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit us on Facebook at www.facebook.com/BerryBerryPllc.