The Americans with Disabilities Act (ADA), passed almost thirty years ago, was the first comprehensive federal law that addressed the needs of individuals with disabilities by prohibiting discrimination in employment, communications, public services and public accommodations.
Modeled in large part after the Civil Rights Act of 1964, Title I of the ADA generally prohibited discrimination against employees with disabilities but also imposed additional obligations for employers to provide reasonable accommodations for their employees with disabilities.
Despite the important public policy behind the ADA and the general support it received, the ADA has proved to be one of the more difficult and time-consuming laws for employers from a compliance standpoint, and has garnered a sizable amount of litigation between employers and their employees. Even today, disability charges are the third most frequently filed claim at the Equal Employment Opportunity Commission (EEOC), following retaliation and sex discrimination claims.
Much of the litigation in the past decades was focused on whether the employee who was alleging disability discrimination was even entitled to protection under the law. In other words, was the employee “disabled” as defined under the ADA and thus entitled to a reasonable accommodation in the first place? After the U.S. Supreme Court came out with a trio of decisions narrowing the definition of disability, holding that individuals who effectively controlled their conditions (e.g., diabetes, cancer, or epilepsy) may not be disabled and entitled to reasonable accommodations, the ADA was amended in 2008 to expressly reject the Supreme Court’s decisions. The amendment expanded the definition of “disabled” under that law to provide a much broader scope of protection for employees.
Called the Americans with Disabilities Act Amendments Act (ADAAA), the amendments to the law and the regulations that followed provided that the definition of disability be construed broadly and that the determination of a disability should not require an extensive analysis.
The practical effect of the ADAAA was that many more employees were entitled to protections under the law including, but not limited to, reasonable workplace accommodations absent undue hardship. As a result of the increase in requests for reasonable accommodations, employers have had to spend much more time on compliance related to the “interactive process” that generally must be engaged in after such a request is made by a disabled employee.
Neither the statute nor the regulations clearly define the interactive process despite its importance to both employers and employees. The regulations provide that:
To determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate an informal, interactive process with the individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.
Reasonable accommodations can include a myriad of adjustments, modifications or changes to the workplace. Some examples noted in the regulations include things like making facilities or equipment accessible and usable, job restructuring, and modified schedules. But how does an employer know which reasonable accommodation should be provided? Or whether the reasonable accommodation requested is likely to assist the employee in overcoming a barrier caused by their disability? The answer is by engaging in a robust interactive process before approving or denying a requested reasonable accommodation.
The easiest way to begin the interactive process is by talking to the employee that has requested the accommodation. Having an informal discussion with the employee about their request is a great way to start the process and ensures that the process is interactive.
And although the ADA does not proscribe the use of any forms or documents that must be used in conjunction with the employee’s reasonable accommodation request, employers should consider documenting the employee’s requested accommodation and discussions with the employee, and then determine whether they need medical information to substantiate the condition and determine the effect of that condition on the employee’s ability to perform their essential job functions.
So long as the disability is not known or obvious, employers are allowed to ask employees for medical documentation about the employee’s disability and the functional job limitations when the employee requests a reasonable accommodation. Doing so is not required by the ADA, but is recommended, as the documentation both evidences the employer’s participation in the interactive process, and increases the chances that a reasonable accommodation may found that works for both the employer and the employee.
Of course, there’s no guarantee that engaging in an interactive process will always result in a positive outcome that works for both parties. Not every reasonable accommodation requested is actually reasonable, and as previously noted, employers do not have to grant a reasonable accommodation that would cause an undue hardship to the business.
That said, employers who deny a request and fail to engage in the interactive process, who fail to effectively document their compliance with this important step, or who fail to even recognize that a reasonable accommodation is being requested by their employee, will face an uphill battle if and when the employee files a claim alleging an employer’s failure to accommodate.
For more information about the ADA and the interactive process, register for our upcoming webinar, Navigating the ADA interactive process.
Janice Pintar has extensive litigation experience in the field of employment law and was a plaintiff’s attorney for nearly thirteen years before becoming an HR Consultant in 2015.
Janice Pintar has extensive litigation experience in the field of employment law and was a plaintiff’s attorney for nearly thirteen years before joining Associated Financial Group’s HR Consultants in 2015. She educates and advises Human Resources professionals and employers on a broad range of employment issues and best practices and costly litigation compliance topics including respectful workplace practices, unlawful harassment avoidance, wage and hour issues, medical leaves and accommodations, as well as federal and state discrimination and anti-retaliation issues. Janice received her undergraduate degree from the University of Wisconsin-Milwaukee, magna cum laude, and her law degree from the University of Wisconsin, cum laude.
On May 11, 2014, the governor of Minnesota signed the Women’s Economic Security Act (WESA), a bill that will require Minnesota employers to make dramatic changes to their employment policies and practices.
While WESA directly impacts employers who conduct business in Minnesota, the changes follow plans by federal and local governments to expand legal protections for women and other employees. For this reason, employers in other jurisdictions should pay close attention to these national and state law trends.
“The only thing that is constant is change.”
Turns out that dusty old Greek philosophers occasionally say profound things (Heraclitus also said that a man’s character is his destiny). And since the Greeks are considered the fathers of democracy and were responsible for no small number of laws themselves, it seems an appropriate departure point to talk about the constantly changing landscape of employment laws.
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