Something to Talk About: Fifth Circuit Reminds Us to Engage in the Interactive ProcessThe 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.

ZOOM, ZOOM, ZOOM!! Will Virtual Platforms Replace How You Interact with Your Employees, Unions, and Lawyers?Roughly 15 months ago the word “Zoom” would have conjured up images of cartoon race cars or maybe Dr. Seuss’ Go Dog Go book. Such images not only show our age but reflect how much our world has changed since the COVID-19 pandemic arrived.

In the legal world, Zoom allowed the practice of law to continue with limited interruption (once you learned what to do). In fact, Zoom meetings became so common place that many folks got “zoomed out” and lamented the absence of personal connections. We have all heard the stories or seen the commercials with Zoom faux pas galore – from dress code violations to forgetting to mute the microphone while the sound of a flushing toilet comes through the computer. Yes, that actually happened during a U.S. Supreme Court hearing last year. But from a practical perspective, clients have found Zoom technology a real time and expense saver.

Dealing with Unions in the Time of Zoom

Personally, I completed two collective bargaining negotiations in 2020 and 2021 all conducted via Zoom. The first one involved a facility in Alaska and had representatives based in Alaska, Virginia, Florida and Tennessee.  In the second set of negotiations, the parties were in New Mexico and two different sites in Tennessee.  In each scenario, Zoom technology provided the parties great flexibility in scheduling meetings and conducting negotiation sessions, including caucusing. In both cases, the parties were successful in negotiating a new CBA without major issues.

What Does That Mean Going Forward?

Zoom is unlikely to replace all face-to-face interactions. While the threat of strike, or an actual strike, could certainly change the dynamics of collective bargaining negotiations and more than likely be better served by an in-person presence, it’s not a given that Zoom could not be an integral part of resolving such situations.  Particularly when “immediate availability” is key – having to travel and wait for arrival can create delays that hinder the resolution process. However, I fully expect clients to consider virtual options to reduce costs. This could mean minimizing many in-person meetings or maybe only those that require out-of-town travel. The costs incurred with air fare, rental cars, hotels, travel time, meals, etc. quickly add up. And any process that envisions months-long time commitments would be a key point in analyzing the benefits of virtual options. On the other hand, some things simply are better in person. Meeting your employees, their union representatives, or your lawyers to discuss significant issues or projects or setting eyes on previously unknown witnesses in a case are enhanced when meeting in person.

Certainly disciplinary meetings and terminations would seem to be better performed in person. This is especially true in coaching sessions where the virtual option would seem to create a potential disconnect in getting the full breadth of your message across. It’s pretty easy to hang up on someone (and blame the proverbial “dropped call”); it’s not as easy to walk out of the office without creating a separate disciplinary issue.

Your litigation decisions may change as well. Deposing a plaintiff in person provides a better sense of that person as a witness since body language and mannerisms may typically go undetected in a Zoom interaction. Trial attorneys are welcoming back in-person trials and court hearings, but many depositions, procedural conferences and administrative hearings may remain remote depending on jurisdictional preferences. The fact that witnesses can appear via Zoom may increase the likelihood that a party will take those depositions, certainly for those witnesses who have left their employers and moved out of state.

The legal environment, like the rest of the business world, has changed dramatically since the pandemic. As the world opens back up and we greet the “new normal,” some of the traditional aspects of our lives, including conducting litigation, have changed dramatically. In-person meetings may be missed but we have to accept that our clients and colleagues have become accustomed to working remotely, and there are time and expense savings associated with that. Personally, I prefer in-person meetings in most circumstances. However, we all want to do the best job we can for our clients to produce great results in a cost-efficient manner, and I have embraced Zoom as a way to do that.

Silverware Rollers Unite! DOL Proposes New Rule on Use of Tip Credit for Non-tipped WorkAs we discussed in April, the Biden administration halted the implementation of some of the Trump administration’s changes to the rules on taking a tip credit for non-tipped work. For those that never have had a server job, employers who have tipped employees (waitstaff, bartenders, etc.) have the option to pay those type of workers $2.13 per hour and take a credit against the tips those workers earn up to the minimum wage of $7.25 per hour. However, there have been a lot of changes back and forth on what to do with work that a tipped employee may also do that does not generate tips (stocking the bar, rolling silverware, cleaning the dining room). How should that work be paid? President Biden’s Department of Labor has now attempted to clarify that question with a new rule.

The Pre-Trump Rule and Trump’s Changes

Before Trump was president, the Department of Labor had what was known as the 80/20 rule. If a tipped worker spent more than 20% of his or her shift on non-tipped tasks, the employer could not take the tip credit for those tasks and ended up paying full minimum wage for that time. In 2018, a DOL Opinion Letter rescinded that rule (although it didn’t get a lot of traction with the courts). The Trump administration later proposed a new rule that was to go into effect in March 2021 that completely did away with the 80/20 rule and allowed employers to take the tip credit for non-tipped duties that were done immediately prior to or after their tipped duties.

Return of the 80/20 Rule

Last week, the Department of Labor announced that they are promulgating a new rule that brings back the old 80/20 rule, with a few new features. Under the new rule, if an employee performs non-tipped work for a substantial amount of time, then the employee is no longer doing work to support the tipped occupation and the employer cannot take the tip credit for that time. The new rule specifically states that if the non-tipped work is done for more than 20% of all hours worked during the employee’s workweek or exceeds 30 continuous minutes, the employer may not take a tip credit for that time and must pay the employee minimum wage. This is only a proposed rule and the comment period runs until August 23, 2021.

Do I Take the Credit or Not?

Currently, because the DOL halted the Trump changes, we are still under the old rule that states that if a tipped worker spends more than 20% of their shift doing non-tipped work, then the employer cannot take the tip credit for that time. It will be interesting to see if the new rule becomes final. If so, employers with tipped workers will have to be careful to religiously calculate exactly what their tipped employees are doing and how long they are doing it. One can imagine different clock-in procedures for each type of work. Stay tuned to this space for any further developments.