June 12, 2012
ADA Accommodation: 10 Ways to Get the Interactive Process Right

Utilizing the interactive process to determine ADA accommodation needs can be tricky. Once you’re started in the process, how do you know you’re doing it right? How do you know you’re meeting your ADA accommodation requirements?

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In a BLR webinar titled "Mastering the ADA Interactive Process: Accommodation Answers for HR," Stacie L. Caraway outlined 10 ways to know if you’re getting the interactive process right.

ADA Accommodation and the Interactive Process: 10 Ways to Get it Right

How do we know if we’re doing the interactive process right? Once you’ve either had a request for accommodation or noticed a need for accommodation and determined the cause is in fact a disability, now what are your options? How do you know you’re doing what you must to meet the ADA accommodation requirements? Here are 10 tips to bear in mind as you assess the situation:

  1. Essential elements of a job can remain "essential." "The EEOC or the ADAAA is not going to require you to take away . . . essential functions." Caraway advised. In other words, employers are not required to eliminate essential job functions in order to accommodate a disabled employee. However, be sure to confirm the "essentialness" of a particular function. You need to be able to show that you actually analyzed the essential functions.
  2. Sometimes, there are no reasonable accommodations for the effects of some disabilities. Some examples include employee violence, permanent or unknown duration leave requests, permanent erratic tardiness or attendance issues (however, look out for FMLA requirements), or intermittent and unpredictable sleeping on the job. In these scenarios, employers still need to use the interactive process to confirm the nature/extent and cause of these effects (except in the case of employee violence), before simply refusing to accommodate the employee.
  3. When an employee has a sudden "revelation" of a disability during a disciplinary action or termination meeting, you are not required to let this have any effect on the proposed disciplinary action or termination. (See next point.)
  4. However, in the case of disciplinary action (other than termination) meetings, such "revelations" can give rise to the need to consider whether the employee is disabled for the purpose of engaging in the interactive process and possibly offering future accommodations. Caraway confirmed: "You do not have to go back in time and take the old write-ups – and even the write up you were giving them in the meeting where they told you all this – you do not have to take either past or current disciplinary actions out." You just need to consider this information going forward.
  5. Employers also are not required to assume that all bad performance or misconduct is linked to or caused by even a known disability. It remains the employee’s obligation to articulate such links prior to being disciplined. That said, obvious links should be acknowledged and the interactive process begun.
  6. Employers should not suggest an answer when discussing attendance or other performance issues by asking, "Is this because of your condition?" or "Do you have some type of medical condition we need to discuss?" Instead, ask the same open-ended questions that you would to any other employee, such as: "What is causing this issue?" or "Do you have an explanation for this issue?"
  7. Employers cannot request or require that disabled employees begin or continue a particular treatment or medication which appears to assist them in performing the essential functions of their jobs. In this case, employers should engage in the interactive process to see if reasonable accommodations can be offered which would allow the employee with a disability to perform the essential functions of his/her job even without the preferred medication or treatment. In a situation where such reasonable accommodations are not available, however, you can advise that if they do not follow that treatment and poor performance or misconduct results, you are entitled to discipline or even terminate them for such performance or misconduct issues.
  8. The interactive process is ongoing. Accommodations which at first on paper appear reasonable can be withdrawn or modified if in practice they do not allow the employee to perform the essential functions of his/her job or become an undue burden to the employer.
  9. It should be clearly expressed (in writing) to those who are offered accommodations what specific conditions are part of the accommodation and what their performance expectations are. This means you should define which performance standards are being modified and which are not. These clarifications should accompany the accommodation.
  10. Modification of a job performance or conduct standard can be a reasonable accommodation for someone with a disability. However, complete and permanent exemption usually is not. For example, giving a disabled employee more time to complete an assigned task can be a reasonable accommodation, but that does not require you to give that employee more pay, such as when it takes additional hours to complete the same work. You could, for example, change their pay rate and schedule to accommodate this. (Be sure to stay in line with overtime and other wage and hour rules, of course.)

For more information on ADA accommodation, order the webinar recording. To register for a future webinar, visit http://catalog.blr.com/audio.

Attorney Stacie L. Caraway is a member in the law firm of Miller & Martin PLLC and concentrates her practice in the areas of labor and employment. She advises national, regional and local employers concerning general employment and labor law issues; develops, reviews, and updates human resource policies and supporting agreements; and represents employers in local, state and federal legal proceedings including EEOC and state human rights commission investigations, mediations and lawsuits throughout the United States.

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