7 ways to screw up the ADA's interactive process
The Americans with Disabilities Act (ADA) not only prohibits discrimination based on disability, but it also requires that employers provide workers with disabilities reasonable accommodations.
And while it's not a per se requirement, the law favors an "interactive process" for determining whether an effective accommodation is available. An employer causing a breakdown in these informal discussions — or refusing to engage in it altogether — can serve as evidence of discrimination.
It's not a terribly complicated idea, but many employers fall short in the execution. The good news, according to David Fram, director of ADA & EEO services for the National Employment Law Institute, is there's something you can do about it. "The interactive process is such an important step for employers," he told HR Dive, and "it’s totally in the employer’s control to get right or mess up.” Here are seven common mistakes.
1. Uncertainty from the start
For employers, the hard part often is knowing when to kick off the process according to Adam Sencenbaugh, a partner at Haynes and Boone, LLP.
"You rarely see an employee who knows about the ADA and asks for a reasonable accommodation," he told HR Dive; "You need to start the process even if they haven’t used any magic words."
2. Resistance to the process
Often, supervisors don't recognize an accommodation request or ignore the request, according to Beth Loy, principal consultant with the Job Accommodation Network (JAN), a program funded by a contract with U.S. Department of Labor's Office of Disability Employment Policy. "If an employee mentions some type of limitation or problem, the supervisor should err on the side of caution and move to talk to the employee."
Fram said he sees the same problem. “Sometimes the supervisor just doesn't like the employee and doesn't want to help the employee," he said. If the employee is not a top performer or a malingerer, the supervisor doesn't want to engage; "that’s when things go wrong," he said.
"I advise employers to bend over backwards to help somebody who is saying, 'I need some help' for something that might possibly be a disability, whether or not you like the person," Fram said.
3. Inadequate training
Even if a supervisor harbors no ill will toward an employee, inadequate training can cause things to fall apart. Douglas Schwarz, a partner with Morgan, Lewis & Bockius LLP, said that “recognizing when someone has requested an accommodation is not always an easy thing to do,” especially because there's no bright-line event or statement that triggers the employer’s obligation to participate in the interactive process.
"Often the request doesn't come until, for example, there’s a performance management action that’s going on." Schwarz offered the example of an employee who is chronically late for work and starts receiving write-ups and warnings. Finally, the employee says, "I'm really having trouble getting out of bed in the morning."
"Has that triggered the need for an interactive process? You don’t want the front-line supervisor feeling like he needs to answer this question," Schwarz said, and "it's not realistic that every manager/supervisor will become an expert in the interactive process. But the supervisor should have enough training to know when it’s time to go to HR."
Loy agreed that training for front-line supervisors is crucial: “Not on the entire ADA," however: "focus on how to recognize when an employee is making an accommodation request."
4. Making it too complicated
When a request is made, employers should first look for a quick, simple and easy solution, Fram said. "If there is one, go ahead and just do it." For example, if an employee has a couple of doctor’s appointments during the next few weeks and needs to come in a little late, let the person do it.
But Fram also advises documenting the following:
- What the person said when he or she came to the supervisor. (For example, "I'm getting headaches from the glare from my computer screen.")
- That the supervisor said, "How can I help you?"
- The employee’s request. ("I need an anti-glare screen.")
- That the employer has provided what was requested.
- That the supervisor didn't ask anything medical. (Supervisors should stay out of medical details as much as possible, Fram said.)
- That there was followup, but that it stayed away from medical details.
If there isn’t a quick fix, Fram said, then the formal ADA process should started "not by supervisors, but by HR or legal. But this all counts as the interactive process."
5. Sharing or requesting too much information
"When implementing an accommodation, supervisors sometimes disclose medical information," Loy said. "Focus on disclosing only information that is need-to-know. For example, if an employee needs an accessible parking space, coworkers need to know only that this person has a specific space — not why."
Additionally, employers sometimes request or gather too much medical information, Loy said. "Employers need only enough to show (1) that there’s a disability, and (2) the employee needs an accommodation." Also, employers "should not be getting periodic updates when the initial documentation states that the condition is not going to change."
6. Inadequate documentation
"If you’re trying to determine whether an accommodation will work, good documentation and particularly a good and accurate job description" are key, said Sencenbaugh. "It’s hard to convince a jury or agency that an essential function truly is an essential function if it’s not in the job description, or if other employees in the role weren't performing it."
"Document the whole thing from start to finish — either you did the process or you didn’t," he said. "If it won’t work, you can show you did all you could have done. If you are claiming undue hardship, you need to be able to articulate why you’ve met that standard."
"On the communication side, one of the really useful tools is documentation," Schwarz said. "Written follow-up in both directions that confirms what the discussion has been."
"Clarity is important," he said, "and getting things in writing adds to clarity."
7. Not trying hard enough
Often, employers cause a breakdown in the interactive process because they're just not trying hard enough. “Organizations don’t invest enough time looking for accommodation options and don’t document where/how they have looked,” said Loy. “If there is no solution, the best thing is your documentation showing that you did explore accommodation options. Use JAN as needed — we are free, and an outside resource. A lot of times we can find an accommodation.”
Fram agreed: “When you get into any of this, call JAN,” he advised. “They are excellent. Many employers don’t want to, because they don’t want to hear what JAN says, but you can be sure that if you’re sued the employee’s lawyer will be calling JAN. You can’t hide your head in the sand on this."
Sencenbaugh said that when ADA issues are intertwined with performance issues, employers should always consider how its actions will look to the employee — “and to a jury a year from now.” If there is a termination, he said, “all the cards are on the table. What was the motivation, and did the employer meet its duty?”
"The interactive process should be ended only after people have taken a hard look and decided there’s really nothing else to say about the matter. Don’t prematurely end the process," Schwarz said. "That’s what courts will look at: [whether there was] a thorough, fair effort to communicate and find an accommodation."