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The Americans with Disabilities Act (“ADA”) requires employers to have reasonable accommodations for employees with disabilities. The regulations outline a four-step interactive process that an employer must take to accommodate a disabled employee.
Overview of the Accommodation Process
First, the employer must review the employee’s job description and determine the essential duties.
Next, both the employer and employee should sit down and determine what barriers currently exist for the employee to perform their job to his or her fullest. This will require the parties to review the employee’s limitations as well as abilities. This will help the parties determine what in the workplace will pose difficulties for the employee.
Third, the employer, working with the individual with a disability, should identify a range of possible accommodations that have the potential to remove the difficulties, either in the work environment or job tasks, and which would allow the individual to perform the essential functions of the job. Engaging in an interactive process, through which the employer and employee work together to arrive at a reasonable accommodation, is likely the employer’s best means of avoiding liability for disability discrimination and the failure to reasonably accommodate a disabled employee. The interactive process leads to better decisions and creates immunity from damages in a claim of failure to reasonably accommodate.
Fourth, having identified various possible accommodations, the employer should assess the effectiveness of each accommodation and the preference of the individual to be accommodated and then determine whether the various accommodations would pose an undue hardship upon the employer.
The Barnett Accommodation Guidelines
In Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th Cir. 2000), the Ninth Circuit Court of Appeals (whose decisions govern the Western states) addressed the interactive process in depth, noting that “the interactive process is a mandatory rather than a permissive obligation on the part of employers under the ADA and . . . this obligation is triggered by an employee or an employee’s representative giving notice of the employee’s disability and the desire for an accommodation.”
The Barnett case establishes guidelines for the interactive process, and the court’s discussion is extremely helpful to employers working with employees with disabilities. According to the court, an employer should:
Therefore, under the ADA, it is improper to force an accommodation on an employee without consulting with the employee or assessing the effectiveness of the accommodation with the employee. In Barnett, the court held that the employer did not engage in the interactive process in good faith because it rejected the employee’s proposed accommodation, but, at the same time, failed to offer any practical alternatives. It is important to remember that the burden is on both parties, the employee and the employer.
The court makes no bones about it — employers are required to engage in the interactive process. Thus, an employer neglects (or refuses) to engage in the interactive process at its own peril. Although the court did not hold that there is an independent claim for failure to engage in the interactive process, the actual consequences are just as severe.
The failure to participate in the interactive process in good faith deprives the employer of its immunity from damages for failure to reasonably accommodate an employee. Generally, if an employer fails to provide an employee with a reasonable accommodation, that employee can recover damages. However, if the employer engages in the interactive process in good faith, that employer will be immune from damages.
More significant is the ruling in Barnett that an employer failing to engage in the interactive process cannot obtain a pre-trial motion to terminate the case (known as a Motion for Summary Judgment), meaning that the case cannot be quickly decided by the court, but has to be decided by a jury trial. Employers can greatly reduce the risk of ADA liability by engaging in the interactive process in good faith. Have an open dialogue with your employees and work with them to find solutions. Employers should also review employee related issues with the employer’s legal counsel before reacting or taking action.
About Melissa N. Engle
Melissa Engle is an associate attorney at White and Bright and her legal practice focuses on representing employers in employment law claims as well as real estate matters. She received her Juris Doctor from California Western School of Law and her Bachelor of Science from University of California, Los Angeles. To learn more about Ms. Engle's practice, or how White and Bright can assist you, your business or organization, please call her.
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