Navigating the ADA s Interactive Process Requirements

Transcription

1 Navigating the ADA s Interactive Process Requirements By Curtis R. Summers and Timothy A. Hilton Topics covered The Regulatory Landscape Understanding the Interactive Process Best Practices and Strategies 1

2 THE REGULATORY LANDSCAPE Applicable Law The Americans With Disabilities Act Amended by the ADA Amendments Act of 2008 Note: Don t forget, state laws may provide greater or different protections 2

3 Americans with Disabilities Act Prohibits employers from discriminating against a qualified individual with a disability Qualified individuals: those who can perform the essential functions of the job with or without reasonable accommodation Reasonable accommodation(s): must be provided to enable an individual with a disability to allow equal employment opportunities, provided the accommodation(s) do not result in undue hardship What is a disability? 1. A physical or mental impairment that substantially limits one or more major life activities 2. A record of having an impairment that is substantially limiting to a major life activity 3. Being regarded as having an impairment that is substantially limiting to a major life activity 3

4 What are examples of major life activities? Caring for one s self Performing manual tasks Walking Seeing Hearing Speaking Breathing Learning Working Sitting Reaching Reading Concentrating Communicating Working Major bodily functions What is a substantial limitation? Construed broadly in light of ADAAA amendments Need only substantially limit one major life activity An impairment is assessed in its active state, and without considering ameliorative effects of mitigating measures Is the individual s ability to perform the major life activity limited when compared to most people in the general population? 4

5 UNDERSTANDING THE INTERACTIVE PROCESS Is Accommodation Required? Accommodations must be reasonable and effective: Feasible, plausible, or ordinary Enables performance of essential functions or other equal opportunities Employers are not required to: Change the essential functions of a job; Shift essential functions to others; Provide the requested or best accommodation; Provide an accommodation resulting in undue hardship (Caution!) 5

6 Types of Accommodations Making facilities accessible or acquiring/modifying equipment; Job restructuring; Part-time or modified work schedules/attendance; Leaves of absence (e.g., FMLA, paid or unpaid leave); Changing training materials or policies; Reassignment to a vacant position The Interactive Process Interactive Process a dialogue between employee and employer to: Determine an individual s disability status Discuss the individual s needs and possible accommodations The Purpose: promote collaboration between employee and employer; allow the employer to determine what accommodations, if any, should be provided Importance cannot be understated 6

7 Starting the Process Generally, an employee requests accommodation No magic words or requirements Recognizing a request is critical Must be initiated by the employer that: (1) Knows an employee has a disability; (2) knows, or has reason to know, of related workplace issues; and (3) knows, or has reason to know, the disability prevents a request for accommodation May be initiated by the employer if there is a reasonable belief an accommodation is needed by an employee with a known disability When in doubt, communicate (e.g., How are you doing? ; How s going? ) Going through the Process Interactive means interactive Non-adversarial The burden does not rest with only the employee Ask relevant questions, if necessary Have employee explain workplace barriers; clarify needs Exchange ideas to identify appropriate accommodations Responsiveness No set deadline to respond to request EEOC says: respond expeditiously and proceed to and through the interactive process as quickly as possible 7

8 Interactive Process Tools When a disability and/or need for accommodation is not obvious, an employer may obtain documentation Documentation of disability and functional limitations Disability-related documentation ONLY Possibly from appropriate healthcare provider With an appropriate release, an employer may also submit questions to the healthcare provider If information is insufficient, the employer may refer the employee to a healthcare professional Employee s refusal may mean he/she is not entitled to accommodation BEST PRACTICES AND STRATEGIES 8

9 Job Descriptions Guide the interactive process Courts give some deference to an employer s statement of a position s essential functions Identify essential functions in writing; in plain English Ensure accuracy; no exaggeration Does an employee in the position actually perform the functions? Provide job description to prospective and current employees Update as needed, but not as a reaction to an accommodation request Do you have formal accommodation procedures or processes? Yes No POLL QUESTION 9

10 Adopt a Procedure; Follow It All employers need EEO policies, including language on reasonable accommodations Encourage, but don t require, written requests Consider an accommodation process as well, to include: A map of a typical interactive process; internal deadlines Defined stages for documentation and written communication to the employee Sample correspondence at various stages for uniformity and compliance Identification of responsible parties; centralize Adopt a Procedure; Follow It Define circumstances to involve healthcare records and providers: Avoid unnecessary requests that violate ADA (i.e., when disability and/or appropriate accommodation is obvious) Sample correspondence to healthcare providers Always attach a copy of current job description Follow the process, but have flexibility for unforeseen circumstances 10

11 Why Are Procedures Important? Help avoid interactive process breakdown, which has consequences: For the employee: impact on availability of accommodation For the employer: potential ADA violation Assist management in staying on task The ADA requires prompt communication, but it is largely undefined Encourage documentation at all stages Set the appropriate tone for ultimate decisions and show careful consideration Communicating the Decision While promptness is important, avoid premature communication or promises before evaluation Focus on essential functions Recap the process Document the offer; seek a prompt response Document the denial; welcome communication If it relates to the reasonableness of desired accommodation, put the ball in the employee s court Consider offering something as a final offer FOLLOW UP 11

12 Train Your Supervisors EEO responsibilities and reasonable accommodation How to recognize a request or need for dialogue The accommodations process Involvement of HR at all stages Implementation of accommodations Anti-retaliation Questions? 12