last update 02-10-2003

Employer's Obligation of Accommodations under ADA

Under the Americans with Disabilities Act (ADA), you have an affirmative obligation to engage in an interactive process with individuals with disabilities to determine the possibility of a reasonable accommodation and what it should be. The term "interactive process" sounds like something you'd learn in a computer class, but all it means is that a covered employer that has knowledge of an employee's disability and need for accommodation must discuss what types of accommodation are necessary, reasonable, and doable.

Before we discuss the interactive process in depth, it's important to understand what you're required to do under the ADA.

WHAT DOES THE ADA REQUIRE ME TO DO?

You probably know from experience that in addition to prohibiting job discrimination against individuals merely because they have a disability, the ADA requires covered employers to reasonably accommodate qualified employees with disabilities. They're "qualified" if they can fulfill the essential job functions with or without an accommodation.

Here's a pretty straightforward example: Meg has serious vision problems and requires a great deal of extra light to see her computer screen. You find a large utility light in the office closet and hang it on her computer. She can see fine, and you've "reasonably accommodated" her. Another example: Suppose Meg has only one arm, but her job doesn't require any manual tasks. She's still "disabled" but doesn't require any accommodation to get the job done.

For a slightly less simple example, suppose you're the hiring partner in a large engineering firm. John, who was born with a condition that leaves him unable to walk, uses a wheelchair to get around. He's a trained engineer with a great deal of experience in your field. He also has excellent recommendations and ideas on how to do the jobs at your facility.

Your large multi-story building, however, has a large staircase that John's wheelchair can't go up and desks that it can't fit under so he can access a computer. John can't perform the job unless he's in your building working with the team on his computer. His skills are what you're seeking, and he's obviously qualified to be an engineer. With a ramp and a new desk, he would be qualified for your opening. Thus, he could be considered a qualified individual with a disability.

Note: If Meg or John didn't have the skills you need for the job, they obviously wouldn't be qualified for the position for reasons not involving their disabilities. You aren't obligated to hire applicants who happen to have a disability if they aren't qualified for the job.

WHAT ACCOMMODATIONS ARE REASONABLE?

What's reasonable depends on the situation. Some of the factors to consider are costs, availability of the accommodation, its necessity, and the available resources.

Meg's situation was easy a large utility light you already have in a closet and you're done. John's case was pretty clear-cut as well. In all likelihood, he's a qualified individual with a disability and should get a ramp and a new desk.

These days, most buildings must comply with building codes requiring ramps. But assuming that wasn't the case in John's situation, you determine that building a simple, safe wooden ramp would cost about $500. A desk that would fit John's wheelchair costs about $300. In this case, especially taking into consideration that the company is large, such an accommodation should be easily done with its resources.

UNDUE HARDSHIP

Jerry wants to join your engineering firm. He has an incredibly rare condition that requires him to be only in areas purified with a special filtration system that would cost your company $150,000 to install. Also, he insists that you provide him with his own bathroom built right next to his desk so he isn't exposed to other people's germs.

OK, it's an extreme example, but Jerry's unfortunate condition would cause an "undue hardship" for your company to accommodate. The office can't reasonably be expected to build a $150,000 filtration system and a new bathroom just for Jerry. His accommodations don't appear to be reasonable, and if he can't perform the essential functions of his job without them, he probably isn't qualified.

USING THE INTERACTIVE PROCESS

Most of your cases aren't as straightforward as Meg's, John's, or even poor fictional Jerry's. In reality, you may have no idea how to accommodate an employee's disability, and the employee may not be so sure what resources are available. That's when the interactive process comes in.

All the interactive process is, really, is a conversation or series of conversations between you and the employee in an attempt to find out what accommodations can be made and how the employee can perform his job with them. It requires you to do more than sit back and wait for the employee to come up with ideas. It also means that he can't sit back and wait for you to come up with ideas. Since he isn't always going to know what you have available and you aren't always going to know what he needs to get the job done, the law requires that the two parties work together to find solutions. As one federal court stated:

"A problem-solving approach should be used to identify the particular tasks or aspects of the work environment that limit performance and to identify possible accommodation. . . . [E]mployers first will consult with and involve the individual with a disability in [a] decision on the appropriate accommodation."

Similarly, the Equal Employment Opportunity Commission's regulations on the interactive process state, "To determine the appropriate reasonable accommodation, it may be necessary for the [employer] to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation."

For example, suppose you work in a plant that creates Product X, a commercial product with numerous uses created by mixing various chemicals together. The chemicals making Product X emit fumes that aren't known to be harmful but can irritate the breathing passages in certain individuals. The chemicals are mixed together and stored in giant vats that are inspected daily.

Mary inspects the vats for three hours a day and then records her findings and issues reports during the rest of her seven-hour workday at a desk located next to two of the vats. She comes to your office and tells you that she's been diagnosed with a lung disorder. Under her doctor's orders, she can't breathe in Product X fumes more than two hours a day. It's essential that she continues to inspect the vats since that's the main purpose of her job.

To figure what to do, you schedule some time for Mary to come in and discuss the matter. Your first suggestion is to move her desk away from the vats so she doesn't have to be near Product X while doing her paperwork. But for her to keep inspecting the vats, she'll have to come up with something else. She talks with her doctor, who agrees that she can wear a protective mask during her inspections. You've now had an interactive process and come up with a way to accommodate her and still get the job done.

In this case, Mary came to you. In some cases, however, you may have to be a little more aggressive. Several circuit courts of appeals have instituted a concrete obligation for employers to begin the process themselves if the disabled employee doesn't do so, under certain circumstances. You should initiate the interactive process regardless of the employee's request if you:

---> know of the employee's disability;
---> have reason to know that he's suffering hardship in the workplace because of that disability; and
---> know that because of the disability, the employee may not be able to raise concerns about the disability himself.

While not all courts impose that obligation on employers, it's not a bad idea to start an interactive dialogue if you know of an employee's need for an accommodation. If you don't know or there are no obvious signs, don't ask. You don't want employees to think you perceive them to be disabled. Also, you aren't required to guess if an employee is disabled or make other assumptions. The ADA doesn't require clairvoyance. The interactive process is designed to work both ways, and your employees must let you know their needs.

WHAT IF MY EMPLOYEE DOESN'T WANT TO WORK WITH ME?

That question brings us to one of the most common issues that employers experience with the interactive process an employee's failure or refusal to work with you to find a reasonable accommodation or discuss the matter at all. What your reaction will be in that situation depends on the severity of the circumstances and whether the accommodation is essential to the employee's ability to perform the job.

For example, you suggest to Mary that she ask her doctor if a mask will help her perform her inspections without forcing her to inhale Product X fumes. You also move her desk away from the vats. Weeks go by, however, and she hasn't called her doctor and refuses to find a way to perform her inspections. Your bottom line is that she's unable to do her job. If she doesn't budge, you may have to find someone else to get the job done. She has failed to perform her obligations as the employee in the interactive process.

Employees and employers sometimes may not agree on what needs to be done. When you're deciding how far your company must go to work out an arrangement with the employee, keep in mind that you have no obligation to provide an accommodation that isn't necessary to the performance of the job. Also, you don't have to provide everything an employee wants in the way that he wants it. Example: Joe has a back problem requiring a chair with back support. You don't have to provide the other chair that he wants the one with heat, massage, and other features he really likes.

BOTTOM LINE

You have an obligation to engage in an interactive discussion with disabled employees requesting accommodations to determine which ones will help them get the job done.

You aren't obligated to provide accommodations that are unreasonable or guess which ones are necessary.

There's no steadfast answer to accommodation questions which in part is why the law requires the interactive process in the first place.

Credit for this article is attributable to M Lee Smith Publishers of HRHero


========================  WARNING  =======================
                      AND DISCLAIMER
This information is provided for the reader's benefit in
becoming familiar with the legal matters discussed.  Your
particular facts may be different from the points above.
You should not rely on the above data without consulting a 
attorney to discuss the specific facts of your case
and the law of your state.
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