Our last post reviewed the basic guidelines of the Americans with Disabilities Act, and how the ADA Amendment Act (ADAAA) expanded the definition of a disability. We will now look at your obligations, as the employer, to address the needs of an employee with a disability.
What is the “Interactive Process”?
State law incorporates guidelines developed by the EEOC in defining an “interactive process” between the employer and employee. A specific, or implied, request triggers the interactive process. A “specific” request occurs once a request is made or the employer otherwise learns of a request for accommodation from a third party (spouse, friend, another employee, doctor…). Examples are:
- An employee’s wife calls telling the employer that the employee had a medical emergency due to MS, needed to be hospitalized, and therefore needs time off
- An employee is given restrictions related to workers’ compensation claim
An “implied” request is when the employer observes the employee with an obvious disability or is having difficulty performing the essential functions of their job.
What is an Employer Required to Do?
Employers must provide reasonable accommodation for those applicants and employees who, because of their disability, are unable to perform the essential functions of the job. In doing so, the employers must engage in a timely, good faith, interactive process with applicants or employees in need of reasonable accommodation.
These guidelines include consulting with the individual to ascertain the precise job-related limitations and how they could be overcome with a reasonable accommodation. Then, identifying these potential accommodations and assessing their effectiveness.
What is “Reasonable Accommodation”?
Examples of reasonable accommodation can include:
- Making existing facilities accessible
- Job restructuring
- Part-time or modified work schedules
- Acquiring or modifying equipment
- Changing tests, training materials or policies
- Providing qualified readers or interpreters
- Reassignment to a vacant position
What is NOT required under Reasonable Accommodation?
Not all requests by an employee must be accommodated. Examples of non-reasonable requests can include:
- Removing of essential job functions
- Creating of new jobs
- Providing personal need items such as eye glasses and mobility aids
- Maintaining same pay and benefits for accommodating a change from full-time to part-time
- Tolerating violation of company conduct rules
The Six-Step Interactive Process
To recap, the Interactive Process can be broken down into 6 distinct steps:
Step 1: Analyze the job and essential job functions
Step 2: Identify job-related limitations
Step 3: Identify possible accommodations
Step 4: Assess the feasibility of accommodations
Step 5: Implement the accommodation that is the most appropriate
Step 6: Follow up regularly
Concerned? You don’t have to go at it alone.
If you are concerned about complying with all areas of the law, you are not alone. Many employers do not attempt to create, implement and manage these guidelines on their own. Rather, the engage the services of a Professional Employer Organization (PEO) to do it for them. A PEO is staffed with human resources and labor law compliance experts and are well-equipped to create and manage an ADA compliance program. If you would like more information, please contact us.
We recently conducted a webinar on a very timely – and complex – subject: the Americans with Disabilities Act (ADA) Compliance. In this post we will review the new laws. In subsequent posts we will discuss what you can do to protect yourself against a discrimination lawsuit.
