Guidelines for an Effective and Compliant ADA Interactive Process
Director of Compliance
The Americans with Disabilities Act (ADA) requires employers with 15 or more employees, and state and local governments, to provide effective, reasonable accommodations to qualified employees with disabilities, unless doing so would cause undue hardship. To arrive at an effective accommodation, employers should enter into a back-and-forth dialogue with the employee to determine if they need an accommodation to perform their essential job functions and, if so, what accommodation is needed. This is known as the “interactive process.”1
Participating in the interactive process is crucial to complying with the reasonable accommodation requirement under the ADA when an accommodation is not obvious. Here are guidelines employers should follow to ensure they engage in a good faith, flexible, and compliant interactive process:
- Recognize Accommodation Requests. The interactive process begins when an employee with a disability requests an accommodation. There are no magic words employees must use when making such a request. The request need not be in writing, articulate a specific accommodation, or use terms such as “reasonable accommodation” or “disability.” Any time employees indicate they are having difficulty in their job due to a health condition, the employer must consider whether they are asking for an accommodation. In other words, employers must proactively recognize when an employee with a disability may need an accommodation.
- Do Not Delay. Employers must not delay engaging in the interactive process. If an employer’s delay in beginning the process is unreasonable, the delay may be used as evidence of disability discrimination.
- Acquire Information. After an accommodation request, employers should acquire information necessary to process the request, including documentation of a disability and the need for an accommodation. Also, employers should determine with the employee if the accommodation is for a limited period or if it is permanent. Since this part of the interactive process involves collecting confidential medical information, it should be handled by a human resource professional and not by the employee’s supervisor.
- Determine if the Employee has a Disability. Under the ADA, a person with a disability is someone who has a physical or mental impairment substantially limiting one or more major life activities, has a history or record of a physical or mental impairment, or is perceived by others as having such an impairment. If an employee (or applicant) falls in any of these categories, the ADA protects them, and they may be entitled to an accommodation.
- Search for an Accommodation. Once the employee’s disability is identified, the employer must search for and suggest accommodations that will effectively assist the employee in doing their job. The employer should also ask the employee to suggest reasonable accommodations. Additionally, the employee’s medical provider may be a valuable source of accommodation options.
- Select the Accommodation. After reasonable accommodation possibilities have been identified, the employer must select the accommodation to use. If more than one effective accommodation is available, the employer should consider the employee’s preference. Nevertheless, employers are not bound by the employee’s preference. The employer may choose among accommodations and may select the least expensive one, as long as it is effective.
- Leave as a Reasonable Accommodation. A reasonable accommodation is any change to the job or to the work environment that helps the employee with a disability perform their job’s essential functions without imposing undue hardship on their employer. Allowing the use of paid leave and unpaid leave can be a reasonable accommodation if it is necessitated by the employee’s disability.
- Employer Follow-Up. After implementing an accommodation, employers should contact the employee to ensure the accommodation was provided as discussed, and that it is enabling the employee to perform their job. Additionally, regular follow-up communication with the employee will help bring any accommodation problems to the forefront sooner and will prevent new issues from arising.
- Keep Information Confidential. Any information received from or on behalf of an employee regarding their disabilities and accommodation needs must be kept confidential. Further, medical documents regarding an employee’s disability and accommodation should be maintained in a private, standalone file.
- Document the Entire Interactive Process. Employers should document the entire interactive process. This documentation can be used to show the employer engaged in a good faith interactive process if a lawsuit or administrative charge is filed.
Employers are obligated under the ADA and state disability laws to accommodate employees and applicants with a disability. Participating in the interactive process is vital to complying with these disability laws and is an obligation employers should not take lightly. Remember, the cost of providing an accommodation is usually not that high, but failing to provide needed accommodations can be expensive for an organization if a disability discrimination lawsuit or charge is filed against them.
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