Today’s advisory focuses not upon a splashy news item or a major case pending before the courts but rather upon a basic subject that bedevils employers and that I give advice on almost every single day: the interactive process under the Americans with Disabilities Act (ADA). (Note: even if you are a small employer to whom the ADA doesn’t apply (fewer than 15 employees), these concepts apply to you through the Oklahoma Anti-Discrimination Act.)
You already know the basics: employers are required to consider accommodations for the known disabilities of employees, where those disabilities are impacting the ability to perform the essential functions of their jobs, through back-and-forth discussions called the interactive process.
Of course, it is easier said than done. Here are some tips to make it easier:
1. Don’t sweat the disabilities. While the early days of the ADA featured legitimate disagreements and discussions of whether a particular condition was a disability under the Act, the passage of the ADA Amendments Act (should have) ended almost all such discussions. At this point, unless someone is claiming an allergy to their supervisor’s sarcasm, just about any medical condition can be a covered disability. It’s a better use of resources to focus on accommodations rather than fighting about whether the individual is “disabled.”
2. If at first you don’t succeed, try, try again. The interactive process is not intended to be a one shot attempt. Instead, the failure of a particular accommodation is an invitation to return to the process and consider whether other accommodations might succeed where the first (or second or third …) failed.
3. You can ask for more detail. If you don’t feel that you have enough detail – particularly about the employee’s limitations that are impacting their work – you can ask for more detail. Medical documentation in this arena does not always provide the greatest clarity. If you find that your accommodations decisions are hinging on interpretation of vague medical guidance, feel free to ask for clarification.
4. You can change your mind. Sometimes an accommodation fails to allow the person to accomplish the essential functions of his or her job. Sometimes the accommodation proves to be unworkable (in other words, an undue burden) for the employer. That’s okay. In deciding to try out an accommodation, the employer is not making a lifetime commitment to that accommodation. Circumstances can change.
5. Think outside the box. Too often leave is the knee-jerk accommodation suggested for disabilities. The interactive process calls upon all parties to think creatively about the various accommodations that could address the particular issue. Does someone working in a cubicle have light sensitivity? A private office is not the only possible accommodation. Perhaps the lighting pattern over the area could be modified? Perhaps these cubicles could accommodate a ceiling to block light? Perhaps the employee could wear dark glasses to reduce light exposure? Often the obvious accommodation is not the only or even best option.
Bonus: all of these concepts can and should be applied to the accommodation of pregnancy-related medical conditions under the Pregnant Workers Fairness Act.
If you have any questions about the ADA and the interactive process, please contact Michael Bowling or any member of the firm’s Labor & Employment Practice Group.