The United States Court of Appeals for the Fifth Circuit recently reiterated the importance of engaging in the interactive process with employees seeking disability accommodations. This case serves as a helpful reminder, especially in the post-COVID-19 work-from-home era, that engaging in meaningful, collaborative conversations with your employees who seek accommodations is best for everyone.

Background on Reasonable Accommodations and the Interactive Process

Under the Americans with Disabilities Act, employees with qualifying disabilities may be entitled to a reasonable accommodation. An employee is generally considered disabled if he or she has a physical or mental impairment that, when active, substantially limits one or more major life activities (or if he or she is regarded as  or has record of having such a disability). An employee may request an accommodation to enable him or her to perform the job. However, as an employer, you are required only to grant reasonable accommodations; for example, you need not grant accommodations that eliminate an essential job function or that would be overly burdensome to your business model.

What is “reasonable” depends entirely on your business, the employee’s tasks and responsibilities, and all of the facts of the situation. To determine what is reasonable, the ADA requires you to engage in the “interactive process,” during which you and your employee discuss potential accommodations, explain what will or will not work, and come to the final landing point of what accommodations are “reasonable.” This can involve the employee’s medical provider or a third party, such as the Job Accommodation Network (JAN), to assess the situation.

Thompson v. Microsoft Corporation

The Fifth Circuit recently noted the importance of the interactive process and ultimately held that Microsoft adequately discussed potential accommodations with its employee. John Thompson was a senior-level executive with Microsoft. After the company raised some concerns about his work performance, he requested roughly 10 accommodations for his Autism Spectrum Disorder. The requested accommodations ranged from a noise-canceling headset to a specialized software that would help with his time management and organization to an assistant that would help him with administrative tasks.

Microsoft found some of Thompson’s requests to be reasonable, such as the headset, the software, a training for his managers on managing employees with Autism Spectrum Disorder, and a specialized job coach. However, it deemed others to be unreasonable, such as providing an administrative assistant. Microsoft believed that the administrative assistant, who Thompson wanted to help translate his verbal information into writing, would impede his relationship with the client, a key business element of his position. Microsoft believed that “the work product would be unacceptably watered down if filtered through a person with less or no experience in basic role requirements.” Additionally, Microsoft believed that the introduction of an assistant would slow down response time to clients, which was important in the role. Lastly, Microsoft noted that this request would require hiring an assistant to handle basic email and administrative tasks. Thus, Microsoft found this request (and others for similar reasons) to be unreasonable.

Importantly, Microsoft discussed these concerns with Thompson. From mid-May through July, Microsoft discussed with Thompson the accommodations requested, explained why it found them either reasonable or unreasonable, and encouraged him to suggest alternate accommodations. Nonetheless, Thompson insisted on his requested accommodations that Microsoft deemed unreasonable, and, when the parties did not come to an agreement, he was placed in a job-reassignment process. He brought suit, claiming, among other things, failure to accommodate his disability under the ADA.

After the court discussed the soundness of Microsoft’s business judgment conclusions regarding the reasonableness of the requested accommodations, it spent a considerable amount of time on the interactive process. The court described the interactive process as a “flexible, interactive discussion to determine the appropriate accommodation” and strongly stated that “an employer’s unwillingness to engage in a good faith interactive process is a violation of the ADA.” Notably, the court reminded employers that the appropriate accommodation need not be the employee’s preferred one; instead, “the employer is free to choose the less expensive accommodation or the accommodation that is easier for it to provide,” so long as it is effective and reasonable.

The court then held that Microsoft properly engaged in the interactive process with Thompson because it:

• Worked with Thompson over several months,
• Explained accommodations it deemed unreasonable,
• Asked Thompson to respond with alternate accommodations, and
• Offered to consult directly with Thompson’s doctors.

Additionally, the court noted that Microsoft’s placing Thompson in the job-reassignment program was a continuation of the interactive process, rather than a termination of it, as job reassignment is one of the reasonable accommodations contemplated by the ADA. Thus, the court held that “because Microsoft had the ‘ultimate discretion to choose between effective accommodations,’ it was justified in placing Thompson on job reassignment over his objections.”

Takeaways

A genuinely interactive process is one of the best ways for an employer to defend itself against an ADA failure-to-accommodate claim. In the wake of COVID-19, we are seeing a rise in employee claims alleging that the employee needed certain accommodations, such as continuing to work from home, and that the denial of that request violated the ADA. Engaging in the interactive process with your employees is not only important, the law requires it.

First, have a clear path for an employee to ask for a reasonable accommodation, and make sure that your managers understand their obligations in this arena.

Second, unless you can easily grant the reasonable accommodation, get help. You may have human resource folks who can deal with this, or you may need to involve outside help (like your lawyer).

Third, once the process has begun, be sure that it is interactive. It may take more than one conversation, and you should document it.

Finally, if you cannot grant the requested accommodations, don’t forget that you need to consider reassigning the employee to a vacant position in which you can provide reasonable accommodations. If there is no vacancy, you do not have to create one, but think about whether you will have spots opening soon. The EEOC and some courts have held that some amount of leave could also be a reasonable accommodation, so do not dismiss that out of hand.

By engaging in a robust interactive process, explaining to your employee why certain accommodations are or are not reasonable, and providing alternatives, as Microsoft did, you will be in a much better position to defend an ADA claim.