This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Plaza America in Reston that specializes in federal employee, security clearance, retirement, and private sector employee matters.
Most employees in Virginia are considered “at will,” which means they can resign and/or be terminated at any time. When employment ends, an employer may offer a severance package to an employee in exchange for the employee’s waiver of rights. However, employers, in the absence of an agreement or severance policy, generally have no obligation to provide employees severance pay. If severance pay is offered, an employer will offer the employee a Severance Agreement.
A Severance Agreement is a contract between the employee and an employer that provides the terms of the end of employment between the employer and the employee. Severance Agreements may also be offered to employees who are laid off or facing retirement. In addition, depending on the circumstances, a Severance Agreement may be offered to an employee who resigns or is terminated. The Severance Agreement must have something of value (also referred to as consideration) to which the employee is not already entitled. Read More
This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Plaza America in Reston that specializes in federal employee, security clearance, retirement, and private sector employee matters.
The White House recently asked states to enact legislation banning non-compete agreements for low-wage workers in an effort to increase competition and improve the economy.
In a White House report issued on Oct. 25, 2016, it explained that these types of agreements often prevent out-of-work employees from finding new jobs in their career fields. The White House also stated that these non-compete agreements interfere with worker mobility.
A non-compete agreement typically bars an employee from working for a competitor or starting his or her own business once the employee leaves the employer.
The White House report cited the fact that 20 percent of U.S. workers have signed non-compete agreements preventing them from working for competitors. The figure included an approximate 17 percent of employees who do not hold a college degree.
As such, the White House is requesting that states pass bans on non-compete agreements for workers who do not possess trade secrets. Additionally, the White House is asking that states require companies to be more transparent about contracts. Read More
This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Plaza America that specializes in federal employee, security clearance, retirement, and private sector employee matters.
We are seeing the start of what may be a nationwide trend after Massachusetts recently became the first state to ban employers from asking job applicants about their salaries during the job interview process.
The bipartisan legislation that was signed into law in early August requires an employer to state a position’s compensation upfront based on what the job applicant is worth to the employer as opposed to what the job applicant made in his or her previous employment position.
Now other legislators are working at the Congressional level, as well as at the state level, to use this law as a model to create similar legislation. On Sept. 14, 2016, a bill was introduced in Congress by Washington, D.C. Representative Eleanor Homes Norton (D) and fellow Democratic Representatives Rosa DeLauro from Connecticut and Jerrold Nadler from New York.
Under the Pay Equity for All Act of 2016 (H.R. 6030), an employer could be subject to a fine of up to $10,000 if it asks questions about an applicant’s salary history. Employers could also be liable to employees or prospective employees for special damages up to $10,000, in addition to attorneys’ fees. Read More
This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Plaza America that specializes in federal employee, security clearance, retirement, and private sector employee matters.
There are a number of circumstances that may cause the U.S. Office of Personnel Management (OPM) to end a federal employee’s disability retirement.
The three most common reasons why OPM would rescind federal disability retirement benefits include:
- Restoration to Earning Capacity: Until a federal disability retiree reaches the age of 60, he or she will typically be given a survey by OPM about the disability retiree’s annual income in the previous year. OPM may consider a disability retiree restored to earning capacity if the individual’s earnings from wages and/or self-employment in any calendar year while a disability annuitant reaches or exceeds 80 percent of the current rate of basic pay of the position the individual occupied immediately prior to retirement. If the disability retiree’s income reached the 80 percent earnings limit in any such calendar year, OPM will usually write (although sometimes belatedly) and inform the disability retiree that his or her disability annuity will terminate.
- OPM Deems an Individual Recovered: OPM may contact a disability retiree and ask the retiree to provide a current medical report from a physician regarding the status of the medical condition that was the basis for disability retirement. A disability retiree can also be asked by OPM about his or her current employment status and other relevant activities. If this information shows a recovery, then the disability retirement annuity may cease. If a disability retiree does not respond to the request by OPM, his or her disability annuity payments may also be suspended.
- Re-employment in the Federal Government: If a disability retirement annuitant is re-employed in the federal sector, his or her disability retirement annuity amount may change or terminate.
If OPM suspends or terminates an individual’s disability retirement annuity, the disability retiree can contest OPM’s determination and/or move to have his or her disability annuity restored depending on the situation.
For example, if a disability retiree is restored to his or her earning capacity but then later drops below the 80-percent threshold, the disability retirement annuity can be restored. Other examples include situations involving medically recovered individuals who experience later recurrences of the disability.
We represent employees in federal employee retirement and employment matters. If you need assistance with a federal retirement or an employment issue, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.
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.
On September 7, 2015, President Obama signed an executive order establishing paid sick leave for federal contractors and subcontractors. The order is an attempt to promote economy and increase efficiency and cost savings in the work performed by employees who contract with the federal government. Federal contractors and subcontractors can earn up to seven days or more of paid sick leave annually, including paid leave allowing for family care. The order does not supersede any federal, state or local laws, and collective bargaining agreements that provide better benefits.
Pursuant to the order, paid leave can be used for illness, injury, or medical condition; obtaining medical diagnosis or care, including preventative care, from a health care provider; caring for a child, parent, spouse, domestic partner, or any other blood relative or closely-associated equivalent of a family relation; and for domestic violence, sexual assault, or stalking.
Employees will be permitted to carry over unused leave from one year to the next. Unused leave will be reinstated for employees rehired within 12 months post-separation by a covered federal contractor or subcontractor. However, employees must request paid sick leave orally or in writing at least seven calendar days in advance of when the need for leave is foreseeable, and in other cases as soon as is practicable. Health care certification or documentation, required no later than 30 days from the first day of leave, is only required if the employee is absent for three or more consecutive workdays.
This is the latest action taken by President Obama in a series of administrative actions aimed at providing benefits to employees. By September 30, 2016, the Secretary of Labor will issue regulations to implement the order. However, it is important that federal contractors and subcontractors note that once the order becomes effective on January 1, 2017, executive departments and agencies will require that new government contracts, contract-like instruments, and solicitations, including lower-tier subcontracts, include a provision specifying that all employees in the performance of the contract or any subcontract thereunder shall earn not less than one hour of paid sick leave for every 30 hours worked. If the federal contractor or subcontractor already maintains a sick leave benefits policy that includes the same or greater paid sick leave benefits, the existing policy will satisfy the order’s requirements.
We represent employees in federal employment matters nationwide, as well as private and public sector employees in employment matters in the Commonwealth of Virginia, Washington, D.C., and Maryland. If you need assistance with an employment law issue, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.
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.
Depending on your particular profession, your employer may require you to sign a stand-alone non-competition agreement, non-solicitation agreement, or other similar restrictive covenant or your employer may include a non-competition and non-solicitation clause in your employment or severance agreement.
Non-competition agreements or clauses typically stipulate that the employee agrees not to enter into or start a similar profession that competes with the employer’s business within a geographic area after he or she terminates employment. Non-solicitation agreements or clauses typically restrict the employee’s ability to solicit, encourage, or assist other employees with leaving or seeking employment with the employee at a competitive employer.
These types of restrictive covenants are usually in effect for a specific period of time and within a limited geographic area after the employment ends.
It is important to note that restrictive covenants narrowly tailored in geographic scope, duration, and type of activities are more likely to be enforced than more broadly drafted restrictive covenants. In particular, the scope of restricted activities and geographic area involved should be related to the employee’s job duties as well as the employer’s business.
Restrictive covenants that were created several years ago may no longer be considered enforceable based on changes in the law. Therefore, it is a good idea for employers to review and consider revising restrictive covenants that were written more than five years ago.
Employers should also note that non-competition and other important employment agreements usually are not enforceable against an employee unless a fully executed copy exists. As such, employers should make sure to sign and carefully maintain their agreements.
Virginia courts will not “blue pencil” or attempt to revise or enforce a narrower restriction in the covenant. As a result, a drafting error or otherwise unenforceable restriction in a larger restrictive covenant or agreement will typically render the entire agreement unenforceable in Virginia.
Furthermore, the Virginia Supreme Court clearly disfavors non-compete covenants. In fact, the Court has not rendered a decision that clearly favors the employer in a restrictive covenant case since the 1990s.
We represent employees and employers in employment law matters. If you need assistance with an employment law issue, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.  Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.
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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.
The Federal Erroneous Retirement Coverage Corrections Act (FERCCA) was enacted in September 2000 and designed to provide relief to federal civilian employees who were placed in the wrong federal retirement system for at least three years of service after Dec. 31, 1986.
Typically, FERCCA errors arise when a federal employee experiences a break in service, especially during the mid-1980s when the Federal Employees Retirement Systems (FERS) plan was created. In some cases, FERCCA has provided federal employees and annuitants placed in the wrong federal retirement system with the opportunity to choose between FERS and the offset provisions contained within the Civil Service Retirement System (CSRS).
In order to determine if you are in the correct federal retirement plan, you need to know the type of appointment you have and your work history. Federal retirement rules governing retirement plan placement are complex and contain many exceptions that are hard to follow. If you find that you fit in any of the situations described below, you could be in the wrong federal retirement system. However, keep in mind that there are exceptions to the general rules.
 If you currently have CSRS coverage, then you may be in the wrong plan if:
- You worked for the federal government before 1984, but not on a permanent basis;
- You left federal employment for more than a year at any time after 1983;
- You have a temporary appointment limited to a year or less, a term appointment, or an emergency indefinite appointment;
- You have no federal civilian employment before 1984; or
- You do not have a career or career conditional appointment and you work on an intermittent basis (see the work schedule block on your SF-50).
This is a sponsored column by attorneys John V. Berry and Kimberly H. 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.
When an employee has been accused of engaging in workplace misconduct, the employer will sometimes conduct an administrative or internal investigation.
Some reasons why employers investigate employees include discrimination complaints, threats against others, safety problems, and workplace theft. The purpose of the investigation is for the employer to gather relevant evidence regarding the employee’s alleged misconduct and determine whether the misconduct warrants a disciplinary or an adverse action (e.g., termination or significant suspension) within the requirements established by law, policy, or regulation.
On occasion, these types of investigations can lead to a potential criminal investigation. Depending on the federal, state, local agency, or private employer involved, a supervisor or other designated investigator may be asked to conduct an investigation regarding the facts at issue. Employees may then be asked to provide verbal or written responses to questions regarding the alleged misconduct.
Employees, depending on their particular employer, may have a duty to fully cooperate with the assigned investigator or can decline to participate in the investigation unless they are ordered to do so.
For example, federal employees may decline to participate in an administrative investigation if it is voluntary. Refusing to cooperate with an investigation or providing false statements or answers during an investigation can be grounds for disciplinary action. Providing false statements, if made to a federal or other law enforcement investigator, can also subject an employee to potential criminal penalties. Internal or administrative investigations can also involve risks for the employer.
Inadequate investigations may raise questions regarding the accuracy of the results or whether the employee was treated fairly. In addition, the employer may not like what the investigation uncovers and will have an obligation to resolve or address issues, such as a systemic problem or legal impropriety.
Prior to providing information to an employer, it is helpful for an employee to discuss with an attorney the issues associated with the information being sought by the employer and the employee’s role in the matter being investigated. An attorney familiar with administrative or internal investigations can provide legal advice to assist an employee in preparation for responding to questions about his or her actions in the matter being investigated. In addition, an attorney can often accompany the employee during any investigative interviews.
Our law firm represents and advises employees on employment-related matters. If you need legal assistance, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.
This is a sponsored column by attorneys John V. Berry and Kimberly H. 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.
Federal and state laws generally require most employers to pay overtime. Although Virginia does not have its own overtime requirement, it follows federal requirements for determining overtime pay and eligibility.
Federal laws regarding overtime eligibility and pay are covered under the Fair Labor Standards Act (FLSA) and are administered by the U.S. Department of Labor, Wage and Hour Division. As such, overtime pay-related questions in Virginia are typically referred to the U.S. Department of Labor.
Larger employers, usually defined as having more than $500,000 in annual sales, are typically bound by FLSA requirements. However, smaller employers generally must pay overtime if their employees work in interstate commerce or conduct business between states, including making phones calls to or from another state, sending mail out of state, or handling goods coming from or going to other states.
Unless specifically exempted, employees who are required or permitted to work more than 40 hours during a workweek generally must receive premium pay for such overtime work at a rate of at least one and one-half times the employee’s regular rate of pay.
 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.
On Jan. 15, President Obama signed a Presidential Memorandum ordering federal agencies to offer up to six weeks (240 hours) of advanced paid sick leave to federal employees relating to the birth of a child, adoption of a child, or the placement of a foster child in their home. The Office of Personnel Management will have 90 days to issue guidance to federal agencies in implementing the new leave policies detailed in the Memorandum.
The Memorandum is designed to address the disparity between federal and private-sector leave policies. While private sector paid sick leave policies tend to vary considerably by occupation, they are generally better than federal sick leave policies.
In his Memorandum, the President reasoned that “offering family leave and other workplace flexibilities to parents can help achieve the goals of recruiting and retaining talent, lowering costly worker turnover, increasing employee engagement, boosting employee morale, and ensuring a diverse and inclusive workforce.”
In addition, the President has asked Congress to pass a national paid sick leave standard by way of the Healthy Families Act that would allow employees who work for businesses with 15 or more employees to earn up to seven annual paid sick days. While the new paid parental leave policy will help federal employees with new children, it is hard to predict whether Congress will pass the broader Healthy Families Act. The President’s proposal for a paid sick leave standard is generally good for employees, employers, and for the economy as a whole.
Our law firm represents and advises federal employees on employment-related matters. If you need legal assistance, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Â Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.
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.
Finding and hiring a lawyer regarding a stressful and difficult employment issue can be quite overwhelming and intimidating for most people. There are many things to consider when looking for the right lawyer to handle your employment matter. The below guidelines may be helpful if you are looking to hire an employment lawyer for the first time.
Obtain legal advice early. If you wait too long to obtain legal advice or assistance with an employment issue, you may hurt your chances to amicably or effectively resolve the matter. The earlier you seek legal help, the more likely you are to avoid a more complicated and costly legal problem down the road.
Research the lawyer. When you are looking for the right employment lawyer, make sure to visit the employment lawyer’s or law firm’s website and review the attorney profiles. You’ll likely find useful information just by browsing the website’s attorney biographies, practice areas, and resource sections.
The lawyer’s website may also lead you to additional resources and will hopefully demonstrate that the employment lawyer has the requisite knowledge and experience in employment law. Of course, the website may not be the only or best resource regarding a particular employment lawyer, but researching the website is a good start and will likely lead you to one or two potential lawyers with whom to make an initial inquiry.
Provide a clear and concise written chronology of your case before the initial consultation. You’ll get more out of your consultation with an employment lawyer if you are able to provide the lawyer with a clear and concise written chronology or timeline of your matter prior to your initial consultation. Remember to include any relevant documentation that you may have. Read More
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 rules governing retirement benefits for divorced federal employees and their former spouses are detailed and complex. The Office of Personnel Management (OPM) is the federal agency that processes court orders, which properly articulate awards of federal retirement-related benefits to the former spouses of federal employees. Therefore, federal employees and their spouses should consider the following general advice if they are facing a divorce.
- Be proactive. Federal employees and their spouses should be aware of the special rules governing federal retirement benefits while negotiating the terms of their divorce. We recommend utilizing a family law attorney who is familiar with these specialized regulations and consulting with a federal retirement attorney who can advise on these complex regulations. Far too often, OPM will deny court orders due to failure to meet the regulatory requirements. In such case, the parties will most likely need to seek an amendment to their court order in family court and submit the amended court order to OPM for processing.
- Cover your bases. Federal employees have a variety of different retirement benefits, many of which can be shared and/or assigned to former spouses after divorce by court order. The family law attorney should be aware of the types of benefits available, including:Â a monthly marital share apportionment (i.e., a portion of the federal retiree’s annuity); a survivor annuity benefit; a portion of the Thrift Savings Plan (TSP); and coverage under the Federal Employees Health Benefit (FEHB) and the Federal Employees Group Life Insurance (FEGLI) benefits plans. The parties to a divorce can decide the fairest division of these potential assets by familiarizing themselves with each of these types of federal benefits.
- Pre-retirement check. We recommend that federal employees meet with a federal agency benefits specialist well in advance of their desired retirement date to discuss their retirement. The federal agency benefits specialist should be able to provide guidance and instructions on how to properly complete retirement paperwork and provide a retirement benefits estimate for the federal employee.
In addition, if the federal employee and his/her former spouse wish to create a survivor annuity benefit, this should be done before the federal employee’s date of retirement. It is incredibly difficult, and often times prohibited, to make modifications post-retirement to a survivor annuity benefit. Therefore, we recommend that all potential issues with survivor annuity benefits be confirmed and corrected in advance of the official retirement date.
Given the unique rules that govern federal retirement benefits, it is highly recommended that federal employees utilize an attorney who is familiar with the proper division of federal retirement benefits in court orders.
Our law firm represents and advises federal employees in federal retirement and other employment matters. If you need legal assistance, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.
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.
There are several important issues that many executive employees and employers must deal with when negotiating and drafting executive employment agreements. The following checklist contains several key issues and provisions that are instrumental to effective executive employment agreements:
Noncompetition and Restrictive Covenants. Many executive employment agreements include employer restraints or restrictive covenants, including covenants not to compete with the employer and non-solicitation of employer customers and employees, during and for a period of time after the contract term. Most state laws regulate noncompetition agreements and restrictive covenants and base enforceability on different standards and definitions of reasonableness.
Compensation. The executive employment agreement should detail the executive’s salary, commissions, bonuses, incentive compensation, stock options, deferred compensation, and any other compensation. It’s particularly important that both parties check with their tax and financial advisors regarding Internal Revenue Code §409A provisions, if applicable, as there are very specific rules with regard to deferred compensation for key employees of public companies.
Benefits. Most employers detail bonus, pension, profit-sharing, stock option and severance benefits in separate benefit plan documents. If such benefit plans are documented, but not detailed in the executive employment agreement, the benefit plan documents should be included in the agreement by reference to avoid potential problems that could arise if the employer benefit plans are later amended.
Employee handbooks typically cover leave, health, disability and life insurance benefit details unless the executive receives additional or different benefits that should be detailed in the employment agreement. Travel and expense reimbursement details may also be detailed in the employment agreement.
Termination. Termination clauses should be very carefully detailed in executive employment agreements. Consider all of the potential problems that could arise in the employment relationship, including potential disability, death, termination with or without cause (as defined by the agreement, including whether severance could be offered in either case), employer bankruptcy, and employee termination for good reason (as defined by the agreement).
Contract Term. Executive employment agreements typically specify the length of the agreement’s term. The employment agreement’s duration can generally range from one to up to three or more years. The agreement should always specify whether the contract term will automatically renew unless the applicable governing state law implies automatic renewal absent a specific term. Read More
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.
On Aug. 8, the Office of Personnel Management (OPM) released its final regulations implementing a new phased retirement program that allows full-time federal employees to work part time and collect retirement benefits while employed. This article summarizes some of the key points about the new program.
The phased retirement program is notable because of its new part-time retirement/part-time employment option for federal employees. OPM has indicated that federal agencies can begin processing applications for this phased retirement program when the new rule becomes effective on Nov. 6, 2014. Not surprisingly, many federal employees have been interested in the program since Congress approved this new retirement option in 2012.
The new OPM rules were the result of an Act of Congress two years ago that permits federal employees to work part time (50 percent schedule) while they draw a portion of their retirement annuity (50 percent of their annuity) once they meet the eligibility requirements for retirement. Federal employees who elect the program will be required to spend at least 20 percent of their time in a mentoring status. Essentially, the objective is for federal employees to help train their replacements as they phase out of the federal workforce.
Those who are eligible for the program include federal employees in both the Civil Service Retirement System (CSRS) and Federal Employees Retirement System (FERS) programs. CSRS employees will become eligible for the new program once they reach 1) 55 years of age and 30 years of service or 2) 60 years of age and 20 years of service. FERS employees are eligible for the program once they reach 1) 30 years of service and their minimum retirement age (MRA) or 2) 20 years of service and 60 years of age.
OPM states in the new rule that the program “is not a one-size-fits-all program,” but that both an agency and an employee must agree that the phased retirement option is a good fit for both. OPM has indicated that the various federal agencies will have the flexibility to work out many other details, including the length of the phased retirement and the number of employees who will be eligible. The phased retirement program was enacted with the general goal of preserving institutional knowledge within the federal agencies while simultaneously saving the federal government money.
For a full synopsis of OPM’s new phased retirement program, the final rule (79 FR 46607) can be viewed here. The new OPM retirement rules can be very complex. We recommend that federal employees obtain legal representation and advice when considering this new phased retirement program, especially during the early stages of the program.
Our law firm represents and advises federal employees and retirees in all federal retirement matters. If you need legal advice or representation regarding the new phased retirement program or any other federal retirement matter, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Â Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.
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.Â
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.
- Â 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.
