The Interactive Accommodation Review Process Under the ADA

by Richard Bunch, January 17, 2018

Background

Title I of the Americans with Disabilities Act of 1990 (“ADA”) requires an employer to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, unless to do so would cause undue hardship. “In general, an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.” There are three categories of “reasonable accommodations”:

(i) modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; or

(ii) modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or

(iii) modifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.

The duty to provide reasonable accommodation is a fundamental statutory requirement because of the nature of discrimination faced by individuals with disabilities. Although many individuals with disabilities can apply for and perform jobs without any reasonable accommodations, there are workplace barriers that keep others from performing jobs which they could do with some form of accommodation. These barriers may be physical obstacles (such as inaccessible facilities or equipment), or they may be procedures or rules (such as rules concerning when work is performed, when breaks are taken, or how essential or marginal functions are performed). Reasonable accommodation removes workplace barriers for individuals with disabilities.

Reasonable accommodations must be provided to qualified employees regardless of whether they work part- time or full-time, or are considered “probationary.” Generally, the individual with a disability must inform the employer that an accommodation is needed. (6)

There are a number of possible reasonable accommodations that an employer may have to provide in connection with modifications to the work environment or adjustments in how and when a job is performed. These include:

  • making existing facilities accessible;
  • job restructuring;
  • part-time or modified work schedules;
  • acquiring or modifying equipment;
  • changing tests, training materials, or policies;
  • providing qualified readers or interpreters; and
  • reassignment to a vacant position.

When Can an Individual Request Accommodations?

An individual with a disability may request a reasonable accommodation at any time during the application process or during the period of employment. The ADA does not preclude an employee with a disability from requesting a reasonable accommodation because s/he did not ask for one when applying for a job or after receiving a job offer. Rather, an individual with a disability should request a reasonable accommodation when s/he knows that there is a workplace barrier that is preventing him/her, due to a disability, from effectively competing for a position, performing a job, or gaining equal access to a benefit of employment. As a practical matter, it may be in an employee’s interest to request a reasonable accommodation before performance suffers or conduct problems occur.

When an individual decides to request accommodation, the individual or his/her representative must let the employer know that s/he needs an adjustment or change at work for a reason related to a medical condition. To request accommodation, an individual may use “plain English” and need not mention the ADA or use the phrase “reasonable accommodation.” In addition, a family member, friend, health professional, or other representative may request a reasonable accommodation on behalf of an individual with a disability.

Requests for reasonable accommodation do not need to be in writing. Individuals may request accommodations in conversation or may use any other mode of communication. An employer may choose to write a memorandum or letter confirming the individual’s request. Alternatively, an employer may ask the individual to fill out a form or submit the request in written form, but the employer cannot ignore the initial request. An employer also may request reasonable documentation that the individual has an ADA disability and needs a reasonable accommodation.

Example A: An employee tells her supervisor, “I’m having trouble getting to work at my scheduled starting time because of medical treatments I’m undergoing.” This is a request for a reasonable accommodation.

Example B: An employee tells his supervisor, “I need six weeks off to get treatment for a back problem.” This is a request for a reasonable accommodation.

Example C: A new employee, who uses a wheelchair, informs the employer that her wheelchair cannot fit under the desk in her office. This is a request for reasonable accommodation.

Example D: An employee tells his supervisor that he would like a new chair because his present one is uncomfortable. Although this is a request for a change at work, his statement is insufficient to put the employer on notice that he is requesting reasonable accommodation. He does not link his need for the new chair with a medical condition.

Reasonable Accommodations and the Job Application Process

An employer may tell applicants what the hiring process involves (e.g., an interview, timed written test, or demonstration of abilities to perform the essential functions of the job), and may ask applicants whether they will need a reasonable accommodation for this process.

During the hiring process and before a conditional offer is made, an employer generally may not ask an applicant whether s/he needs a reasonable accommodation for the job, except when the employer knows that an applicant has a disability — either because it is obvious or the applicant has voluntarily disclosed the information — and could reasonably believe that the applicant will need a reasonable accommodation to perform specific job functions. If the applicant replies that s/he needs a reasonable accommodation, the employer may inquire as to what type.

After a conditional offer of employment is extended, an employer may inquire whether applicants will need reasonable accommodations related to anything connected with the job (i.e., job performance or access to benefits/privileges of the job) as long as all entering employees in the same job category are asked this question. Alternatively, an employer may ask a specific applicant if s/he needs a reasonable accommodation if the employer knows that this applicant has a disability — either because it is obvious or the applicant has voluntarily disclosed the information — and could reasonably believe that the applicant will need a reasonable accommodation. If the applicant replies that s/he needs a reasonable accommodation, the employer may inquire as to what type.

Reasonable Documentation

Reasonable documentation means that the employer may require only the documentation that is needed to establish that a person has an ADA disability, and that the disability necessitates a reasonable accommodation. Thus, an employer, in response to a request for reasonable accommodation, cannot ask for documentation that is unrelated to determining the existence of a disability and the necessity for an accommodation. This means that in most situations an employer cannot request a person’s complete medical records because they are likely to contain information unrelated to the disability at issue and the need for accommodation. If an individual has more than one disability, an employer can request information pertaining only to the disability that requires a reasonable accommodation.

An employer may require that the documentation about the disability and the functional limitations come from an appropriate health care or rehabilitation professional. The appropriate professional in any particular situation will depend on the disability and the type of functional limitation it imposes. Appropriate professionals include, but are not limited to, doctors (including psychiatrists), psychologists, nurses, physical therapists, occupational therapists, speech therapists, vocational rehabilitation specialists, and licensed mental health professionals.

Note: An excellent source of information that can be used to determine accommodations is the WorkSaver Evaluation. The WorkSaver evaluation will specifically describe which essential job functions that an employee can or cannot perform.

Can Employer Require an Individual to go to a Health Care Professional of the Employer’s Choice?

The ADA does not prevent an employer from requiring an individual to go to an appropriate health professional of the employer’s choice if the individual provides insufficient information from his/her treating physician (or other health care professional) to substantiate that s/he has an ADA disability and needs a reasonable accommodation. However, if an individual provides insufficient documentation in response to the employer’s initial request, the employer should explain why the documentation is insufficient and allow the individual an opportunity to provide the missing information in a timely manner. Documentation is insufficient if it does not specify the existence of an ADA disability and explain the need for reasonable accommodation.

Any medical examination conducted by the employer’s health professional must be job-related and consistent with business necessity. This means that the examination must be limited to determining the existence of an ADA disability and the functional limitations that require reasonable accommodation. The WorkSaver evaluation meets this ADA requirement. If an employer requires an employee to go to a health professional of the employer’s choice, the employer must pay all costs associated with the visit(s).

What Accommodations Are Reasonable?

An accommodation is “reasonable” if it appears to be “feasible” or “plausible.” An accommodation also must be effective in meeting the needs of the individual. In the context of job performance, this means that a reasonable accommodation enables the individual to perform the essential functions of the position. Similarly, a reasonable accommodation enables an applicant with a disability to have an equal opportunity to participate in the application process and to be considered for a job. Finally, a reasonable accommodation allows an employee with a disability an equal opportunity to enjoy the benefits and privileges of employment that employees without disabilities enjoy.

What Accommodations Are Not Reasonable?

There are several modifications or adjustments that are not considered forms of reasonable accommodation:

1. An employer does not have to eliminate an essential function, i.e., a fundamental duty of the position.

Clarification: An employer does not have to eliminate an essential function because a person with a disability who is unable to perform the essential functions, with or without reasonable accommodation, is not a “qualified” individual with a disability within the meaning of the ADA. Nor is an employer required to lower production standards — whether qualitative or quantitative — that are applied uniformly to employees with and without disabilities. However, an employer may have to provide reasonable accommodation to enable an employee with a disability to meet the production standard. While an employer is not required to eliminate an essential function, or lower a production standard, it may do so if it wishes.

2. An employer does not have to provide as reasonable accommodations personal use items needed in accomplishing daily activities both on and off the job. Thus, an employer is not required to provide an employee with a prosthetic limb, a wheelchair, eyeglasses, hearing aids, or similar devices if they are also needed off the job.

3. An employer is not required to provide personal use amenities, such as a hot pot or refrigerator, if those items are not provided to employees without disabilities. However, items that might otherwise be considered personal may be required as reasonable accommodations where they are specifically designed or required to meet job-related rather than personal needs.

Undue Hardship

The only statutory limitation on an employer’s obligation to provide “reasonable accommodation” is that no such change or modification is required if it would cause “undue hardship” to the employer. “Undue hardship” means significant difficulty or expense and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation.

Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business.  An employer must assess on a case-by-case basis whether a particular reasonable accommodation would cause undue hardship. The ADA’s “undue hardship” standard is different from that applied by courts under Title VII of the Civil Rights Act of 1964 for religious accommodation.

The Interactive Accommodation Review

The employer and the individual with a disability should engage in an interactive accommodation review process to clarify what the individual needs and identify the appropriate reasonable accommodation. The employer may ask the individual relevant questions that will enable it to make an informed decision about the request. This includes asking what type of reasonable accommodation is needed.

The exact nature of the dialogue will vary. In many instances, both the disability and the type of accommodation required will be obvious, and thus there may be little or no need to engage in any discussion. In other situations, the employer may need to ask questions concerning the nature of the disability and the individual’s functional limitations in order to identify an effective accommodation. While the individual with a disability does not have to be able to specify the precise accommodation, s/he does need to describe the problems posed by the workplace barrier. Additionally, suggestions from the individual with a disability may assist the employer in determining the type of reasonable accommodation to provide.

When the disability and/or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about his/her disability and functional limitations. The employer is entitled to know that the individual has a covered disability for which s/he needs a reasonable accommodation.

The employer’s duty to engage in the Interactive Process begins when the employer becomes aware of an employee’s need for accommodations. A request for accommodations does not have to come on any special form, or utilize any particular language, or refer to the ADA or FEHA. Any notice you receive that an employee has permanent restrictions or a permanent disability rating should be treated as a request for accommodation.

An employer should respond expeditiously to a request for reasonable accommodation. Unnecessary delays can result in a violation of the ADA.

Most initial requests for accommodation do not contain all the information an employer needs to identify and select appropriate reasonable accommodations. Workers’ Comp medical exams often provide little or no information about an employee’s actual work restrictions. In this case, the employer’s obligation is to ask the employee for more details regarding the accommodation requested.

An employer can ask the employee to provide information from his or her doctor, or you may ask the employee to sign an Authorization to Release Medical Information, which must comply with the Confidentiality of Medical Records Act. This authorization permits the employer to communicate directly with the employee’s doctor. The employer should provide a copy of the employee’s job description and the description for any other job in which the employer may consider placing the employee, but this information should not be sent directly to the employee’s doctor without an authorization.

Employers are only entitled to learn work-related information regarding an employee’s disability. For example, rather than asking “what is wrong with the employee,” inquiries should focus on “what work-related tasks is the employee unable to perform?”

After the employer has received sufficient information to assess potential accommodations, the employer should schedule a meeting with the employee. This meeting should usually be face-to-face, unless the employee is physically unable to attend. Invite the employee to set a mutually acceptable time; if the employee refuses, set a time and give sufficient advance notice by writing. When meeting with the employee, it is important to elicit from the employee his or her suggestions regarding potential accommodations. Reasonable accommodations may include modifications to the employee’s present position, or assignment to an alternative open position. Therefore, the employer should inquire about the employee’s skills and abilities that may qualify him or her for another position. Employer can ask the employee to submit a current resume and any diplomas or certificates of training. The discussion should also address the employee’s interest in possible alternative positions, and how much training would be required to qualify the employee for those jobs.

As part of the interactive accommodation review process, the employer may offer alternative suggestions for reasonable accommodations and discuss their effectiveness in removing the workplace barrier that is impeding the individual with a disability. If there are two possible reasonable accommodations, and one costs more or is more burdensome than the other, the employer may choose the less expensive or burdensome accommodation as long as it is effective (i.e., it would remove a workplace barrier, thereby providing the individual with an equal opportunity to apply for a position, to perform the essential functions of a position, or to gain equal access to a benefit or privilege of employment). Similarly, when there are two or more effective accommodations, the employer may choose the one that is easier to provide. In either situation, the employer does not have to show that it is an undue hardship to provide the more expensive or more difficult accommodation. If more than one accommodation is effective, “the preference of the individual with a disability should be given primary consideration. However, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations.

An employer may not require a qualified individual with a disability to accept an accommodation. If, however, an employee needs a reasonable accommodation to perform an essential function or to eliminate a direct threat, and refuses to accept an effective accommodation, s/he may not be qualified to remain in the job.

Breakdowns in the Interactive Process

The interactive accommodation review process requires each side to engage in a good-faith exchange of information. Often, after a long and contentious Workers’ Compensation claim, an employee is not interested in communicating with the employer. Remember though, it is still the employer’s responsibility to show that the employer made a good-faith attempt, and that any breakdown in the process was due to the employee’s unreasonable failure to participate.

This means that all communications should be in writing or written down immediately, and that all letters should be sent with a signature required for delivery. Furthermore, sending one letter is usually not enough. Any failure by the employee to respond should be followed up, and the employer should be able to show at least two attempts to reach the employee before deciding that he or she has failed to participate. At the end of the road, if the employee fails to communicate (after at least two attempts) or there is no reasonable accommodation available, then the employer is justified in separating the employee for medical reasons. If the employer has documented its efforts well, the employer has taken a significant step to be in a good position to defend any potential claims.

It is apparent that employers are supposed to engage with disabled workers and applicants in the ADA’s interactive accommodations process in order to arrive at reasonable accommodations. But what if the employer refuses and it turns out the employee wasn’t actually disabled? Does the refusal in and of itself amount to an ADA violation? A recent federal court case out of Texas found that the employer was not in violation of the ADA. ( Stewart v. Autorevo, Case # Northern District, Texas, 2017)

For more information on the interactive accommodation review process under the ADA, please refer to Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act   www.eeoc.gov/policy/docs/accommodation.htm

A client of WorkSaver Systems? Call WorkSaver Systems if assistance is desired to establish an effective interactive accommodation review process.  (800) 414-2174 or e-mail dr.bunch@worksaversystems.com or trevor@worksaversystems.com .

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