The employment provisions of the Americans with Disabilities Act (ADA) protect disabled job applicants and employees from employment discrimination that is based on having a disability. Specifically, employers cannot discriminate against qualified individuals with disabilities who can perform the essential functions of the position with or without reasonable accommodation, unless the accommodation would cause an undue hardship.
The ADA is a federal law and covers all private employers with 20 or more employees, state and local governments (including school districts), employment agencies, and labor organizations. Many states also have their own laws prohibiting employment-based disability discrimination. Those laws can be broader than the ADA and offer more protection to applicants and employees.
But one thing that the ADA and most states’ laws have in common is the obligation to engage in an interactive process when considering reasonable accommodations. It’s not enough for an employer to reach a general conclusion that a particular accommodation would cause undue hardship or cannot be performed by an employee. Failure to include the employee in conversations about possible accommodations can be the difference between being found liable for discrimination or not.
The interactive process requires a good faith dialogue between the employer and the applicant/employee. These are not necessarily easy conversations to have and in each case, you may or may not have a person who is sincere about trying to find a way for him or her to perform the job. Regardless, you need to try to have conversation anyway.
And yes, the interactive process can be done in writing as long as it is conducive to the person being able to contribute on a substantive basis. But where possible, it is usually better to have live conversations that involve a two-way dialogue between you and the applicant/employee.
Sometimes, an applicant/employee may not specifically request an accommodation. Rather, he/she tells you about a condition that limits his/her ability to do the job but no more. Or you may actually observe the limitations in the workplace. Keep in mind that making a specific request for a specific accommodation is not required for you to have the obligation to start the interactive process.
Make sure you have the information from the person that you need to understand the ways in which he or she is limited from performing essential job functions. Perhaps come up with some of your own ideas about how those job functions may be accommodated. Ask the applicant/employee for both his/her thoughts about those ideas and for his/her own ideas. Together, you are likely to be able to come up with something that works.
Of course, you don’t need to select the specific accommodation that the person requests. Your obligation is to choose an effective accommodation. And it doesn’t need to be the most expensive. If the applicant/employee insists that the accommodation you select won’t work, find out the basis for his/her opinion so that you can try to address it.
Ultimately, if you select an effective accommodation and the person refuses to comply, you will be in a better position to defend your organization if the applicant/employee files a discrimination charge against you. The record of trying to engage in, or having engaged in, the interactive process will demonstrate your willingness to work with the person to enable them to perform the job.
And remember, there are organizations that exist for the purpose of helping companies to provide reasonable accommodations. They may know about some easy job modifications that have worked in other companies. Or they may know about some technology or equipment that has been effective for others. They may even be able to rent you the technology or equipment you need at a fraction of the cost of buying it. And they can tell you about tax credits that may be available to you for using the equipment or technology as part of an accommodation.
The reality is that many disabilities can be accommodated so that an applicant or employee is able to be a valuable contributing member of your workforce. Think about the disabilities laws as opportunities rather than burdens and you will be surprised at what a little creativity can accomplish. In the process, you may get to hire or retain a great employee as well as model professional behavior for others to emulate.
Barrie Gross is former Vice President and Senior Corporate Counsel (Employment Law) for an international Fortune 1000 company and is a regular contributor to AllBusiness.com. She is the founder of Barrie Gross Consulting, a human resources training and consulting firm dedicated to assisting companies to manage and develop their human capital. Visit www.barriegrossconsulting.com to learn more about Barrie and the services BGC provides.
Note: The information here does not constitute legal advice and should not be relied upon as legal advice. If you have a legal issue or wish to obtain legal advice, you should consult an attorney in your area concerning your particular situation and facts. Nothing presented on this site or in this article establishes or should be construed as establishing an attorney-client or confidential relationship between you and Barrie Gross. This article is provided only as general information, which may or may not reflect the most current legal developments or be complete.