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The Americans with Disabilities Act (ADA) requires covered employers to provide reasonable accommodations for employees with disabilities. To help determine effective accommodations, employers should use an “interactive process,” which simply means that employers and employees with disabilities who request accommodations work together to brainstorm accommodations. While it’s not a per se requirement, the law favors an “interactive process” for determining whether an effective accommodation is available. However, many employers may get “tripped up” on this process by not vetting additional options, which opens potential to adverse verdicts under the ADA.

As a preview to this month’s Breakfast with Bradley, this post discusses common pitfalls employers may face in this interactive process. Join us at Breakfast with Bradley on Thursday, March 21, to take a deeper look at the workings of reasonable accommodation and the interactive process and to address the potential unintended consequences of being overly accommodating, as well as the growth of requests for religious accommodations.

Recognizing the Need for Accommodation & Initiating the Interactive Process

As a general rule, the employee with a disability must inform the employer that an accommodation is needed. The request can be made verbally or in writing, and the employee does not need to use any magic language when making the request and need not reference the “ADA” or specifically use the term “reasonable accommodation.” This notice triggers the employer’s obligation to initiate the interactive process.

However, notice of an employee’s disability is not always provided by the employee with a disability. Notice may come from the employee’s family members, friends, health professionals or other representatives. It may also come as a result of administering FMLA leave or a workers’ compensation claim.

Notice of a disability alone is not enough to trigger the obligation to initiate the interactive process. This is particularly true if the employer has no indication the disability is impacting the employee’s ability to perform his or her essential job functions. The standard of proof required here is low: When an employee continues to come to work and continues to perform at least some of his or her essential duties, employers are encouraged to proceed with the interactive process.

While employers should never assume an employee is disabled, employers should act reasonably when determining whether there exists sufficient notice to initiate the interactive process.

Employers should act promptly to initiate this discussion. Failure to engage in the interactive process does not, in and of itself, result in liability under the ADA. But failure to engage in the interactive process may prevent an employee from receiving a reasonable accommodation and may therefore result in liability under the ADA.

Documenting the Interactive Process

The best thing an employer can do is document that the employer and employee explored accommodation options. Employers should document the interactive process from start to finish.

This way, if there is no solution, the employer can show they did all that could be done. Documentation is also important if the employer intends to claim undue hardship — the employer needs to be able to articulate why they meet that standard.

Exploring Accommodation Options

If a reasonable accommodation is not readily apparent, employers should be open to new ideas and new ways of completing essential functions of the position at issue. Employers should always invite the employee with the disability to suggest accommodations. In some cases, the employee’s medical provider may be a good resource — but again employers should not request the employee’s protected medical information. And if more ideas are needed, the employer might consult with in-house or external counsel or other resources such as the Job Accommodation Network (JAN). When consulting with external resources, the employer should always be mindful of complying with the confidentiality rules of the ADA.

Employers may get themselves into hot water if they do not invest enough time exploring accommodation options and do not document the process. Essentially, the interactive process should only end when the employer has taken a hard look and should not prematurely end the process.

Bottom line: Employers should always consider how its actions will look to the employee — and to a jury a year from now. Courts will always look at whether there was a thorough, fair effort to communicate and find an accommodation.

Choosing, Implementing & Monitoring Accommodations

If the employee with the disability has multiple options for a reasonable accommodation, the employer should consider the preference of the employee. However, the employer may choose among effective options and may choose the lowest cost accommodation.

Sometimes employers are not sure whether an accommodation will work and are afraid if they try it out they will be locked in forever. This is not the case. Employers are free to try accommodations and stop them if they do not work. Consider implementing a trial period.

Once an accommodation is selected, the employer should ensure all necessary steps are taken to implement the accommodation and communication with essential personnel about the accommodation — always keeping in mind the ADA’s confidentiality rules.

An important but often forgotten part of the interactive process is monitoring accommodations after they are in place. In some cases, an accommodation stops being effective for various reasons such as the employee’s limitations change, workplace equipment changes, the job changes, the workplace itself changes, or the accommodation becomes an undue hardship for the employer. Because changes occur, employers may need to periodically check on the ongoing effectiveness of accommodations. For this reason, employers should encourage ongoing communication.