The ADA’s Interactive Process—Not “One and Done”
“I provided medical leave for Joe Schmoe [or Sally Jessie]. Aren’t I done? Haven’t I complied with the law?”
Sometimes yes, and sometimes no.
Yesterday, the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces the federal anti-discrimination laws, announced a large (i.e., six figures) monetary settlement against an employer—a large medical center that provides surgical services.
According to the EEOC suit, the medical center provided sick leave to one of its nurses to have surgery. So far, so good. However, right before her leave expired, this nurse requested a reasonable accommodation of an extension of her leave, or to return to work on light duty. Her doctor and physical therapist supported this request. However, her employer refused both additional requests for either accommodation, failed to engage in any interactive process with the nurse to try to reach a solution with her, and terminated her—after 36 years on the job. You can read about the settlement here.
What’s the issue here? Didn’t the employer already provide a reasonable accommodation?
The Americans with Disabilities Act (ADA) requires employers (with more than 15 employees) to provide a reasonable accommodation to a qualified employee with a “disability” within the meaning of the ADA (it’s a broadly interpreted term) that substantially limits one or more major life activity(ies) or has a record of a disability. Leaving aside for the moment whether or not this nurse had a disability, employers should note that the ADA only protects employees who are “qualified”, i.e., possessing the skill, experience, and education to do the job and able to perform the essential functions of a position with or without any reasonable accommodation.
A reasonable accommodation is a change in the way duties are performed to help a disabled employee perform his or her job duties or enjoy the benefits and privileges of employment. If a disabled employee requests a reasonable accommodation, an employer must provide it unless doing so would cause “undue hardship,” defined as significant difficulty or expense for the employer given its size, financial resources, and the needs of the business. An employer may not refuse to provide an accommodation just because it involves some cost, but in truth, most accommodations are free or less than $500.
So, in this case, the employer provided leave for the nurse’s surgery and rehabilitation—what’s the problem?
Critical to compliance with the ADA, employers must engage in an “interactive process” with an employee who has a disability to determine what kind of reasonable accommodations it can provide. Engaging in the interactive process is an ongoing duty. I cannot emphasize that enough.
Now you can see why the EEOC sued the medical center employer: while it provided an accommodation, it refused to continue to engage with the nurse to determine additional reasonable accommodations she might need. The EEOC warned employers against maintaining inflexible policies that might restrict medical leave in violation of the ADA and/or the Family Medical Leave Act (FMLA). The FMLA requires that an employer provide 12 weeks of unpaid leave to eligible employees, and, employers may have a duty beyond that to provide unpaid leave as a reasonable accommodation unless such an accommodation would cause undue hardship to the employer.
I’m simplifying the FMLA here, but the FMLA is a topic for another day. The point is—some employees who develop disabilities require only one reasonable accommodation, while others may require additional accommodations or require accommodations at a later date. If an individual requests multiple reasonable accommodations, (s)he is entitled only to those accommodations that are necessitated by a disability and that will provide an equal employment opportunity. So, you see, providing a reasonable accommodation is not a “one and done” obligation.
- Determine whether or not an employee requires an accommodation. Actually talk to the employee about this, i.e., engage in an “interactive discussion.” Determine what your employee needs and what you, as the employer, can provide without undue hardship to your business.
- Once you’ve had this sit-down with your employee and the employee agrees that (she would benefit from certain reasonable accommodations, consider whether you need to request any functional limitations, caused by the disability, from an employee’s medical provider so as to understand the employee’s difficulties, how accommodations could alleviate an employee’s limitations, and which accommodations may be appropriate.
- A wide range of reasonable accommodations is likely to exist. Check the EEOC website, the JAN Network, or consult with an employment attorney (I am available (I don’t just write blog posts), as are my excellent employment law partners at FisherBroyles.
- Document any interactions with the employee, and remember that the ADA duty to engage in an interactive process to determine how best to accommodate an employee with a disability is an ongoing one.
- Check your handbook policies for inflexibility. Modification of a workplace policy may be a reasonable accommodation for a disabled employee.