ADA’s Interactive Process Requirement Means You Have to Talk to Employees
Your employee tells you that she has a disability that has resulted in limitations on her ability to perform certain job duties. She asks for a reasonable accommodation and even has a couple suggestions. What is your obligation to meet with her to discuss her limitations and possible accommodations? What happens if you fail to do so? The U.S. Court of Appeals for the 7th Circuit (whose rulings apply to all Wisconsin employers) recently provided some guidance to employers on these important questions, and unfortunately for the employer in the case, it will have to face a jury trial. The court of appeals made clear that failing to engage in an interactive process with the employee for the purpose of discussing possible accommodations can be a violation of the Americans with Disabilities Act’s (ADA) reasonable accommodation requirement.
The Lawler Case
Eymarde Lawler was employed as a special education teacher with Peoria School District No. 150. Lawler suffered from post-traumatic stress disorder (PTSD), but for the first nine years of her employment, she received satisfactory performance evaluations. When Lawler suffered a relapse of her PTSD in 2010, she advised the school district of her disability. Due to a conflict between Lawler and her principal, the district transferred her to work at a new school with children who had both learning disabilities and severe emotional or behavioral problems. Although Lawler did not feel prepared to work with this population of students, she made an effort to do so and, in her first year, received a satisfactory evaluation.
During the next school year, Lawler was injured by a student and had several additional traumatic issues in her life. She requested a two-week leave of absence and transfer to another school. The school district granted the requested two-week leave of absence but did not grant the transfer request. The district and Lawler had differing stories as to exactly what Lawler requested and whether, based upon her subsequent actions, she had changed her mind about the requested transfer. In any event, the school district did not transfer Lawler, and she received an unsatisfactory performance evaluation.
When the school district implemented a reduction in force (RIF), those with unsatisfactory evaluations were the first terminated, including Lawler. She sued, claiming that the school district failed to reasonably accommodate her disability. At the trial court level, the school district was successful in obtaining dismissal of Lawler’s claims, and she appealed.
The school district did not fare so well before the court of appeals. The appellate court concluded that there was a question of fact as to whether the school district met its accommodation obligation. Unlike most cases, the focus here was on whether the employer had caused a breakdown in the interactive process and, if so, whether it should be legally liable for any such breakdown.
The answer to that question was yes—the employer could be liable for failure to reasonably accommodate a disability, and it was up to a jury to decide whether the school district had caused the breakdown in the interactive process. The court of appeals emphasized the importance of employers and employees discussing what accommodations may be necessary. The school district should not have made assumptions about what the employee may need but should have sought clarification from the employee or the employee’s doctor regarding any questions. Lawler v. Peoria School District No. 150, No. 15-cv-2976 (7th Cir., September 16, 2016).
It has long been the position of the Equal Employment Opportunity Commission (EEOC) that the interactive process is an integral part of accommodating disabilities in the employment context. The 7th Circuit has been less than clear as to whether a breakdown in the interactive process is enough to state a claim for violation of the ADA. Recent decisions, including the Lawler decision, make clear that if an employer is to blame for a breakdown in the interactive process and the employer does not, as a result, provide a reasonable accommodation, the employer can be legally responsible.
Of course, not all accommodations require an interactive process. A disability and resulting limitations may be clear and the necessary accommodation equally clear. In that case, the full interactive process is not necessary. However, in many situations you will need to sit down with the employee and have an interactive discussion. Here are some guidelines to assist you with that process:
(1) Explore what the employee’s specific disability is and how it limits her in performing her job duties.
(2) Decide if you need some additional information from the employee’s healthcare provider, if you have not already obtained such information. Remember, you need the employee’s authorization to contact a healthcare provider. Additionally, only seek the information necessary to understand work limitations caused by the disability and any suggested accommodations.
(3) Explore with the employee the specific accommodation(s) that she wants.
(4) If necessary, seek suggestions from the employee’s healthcare provider as to possible accommodations.
(5) Discuss the likely duration of any needed accommodation.
(6) Discuss alternative accommodations that might effectively satisfy the employee’s disability-related needs.
(7) Determine if any of the proposed accommodations would cause the company an undue hardship.
(8) Select an appropriate accommodation. It need not be the specific accommodation requested by the employee, but it is the EEOC’s position that employers should give serious consideration to an employee’s request and that the employee’s request is the preferred accommodation.
(9) If necessary, discuss with the employee possible technical assistance from a third party regarding the feasibility of certain accommodations or ideas for possible reasonable accommodations.
(10) This is not a one-size-fits-all process; it requires an individual assessment. The accommodation should be specific to the disability-related work limitations of the specific employee.
When an employee has requested a reasonable accommodation for a disability, or such an accommodation is obvious, even though no request has been made by the employee, the interactive process is a critical part of the accommodation process. If it is unclear whether an employee still wishes a particular accommodation or has a particular work limitation, do not make assumptions. Rather, sit down with the employee. And as with other HR matters, be sure to document your discussions.