new approaches to the interactive process filethe interactive process –in 6 easy steps! tips on...
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New Approaches to the Interactive Process
Gillian Murphy
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AGENDA
Reasonable Accommodation Overview
The Interactive Process – In 6 Easy Steps!
Tips On Managing Performance
Next Steps When You Are Out of Options
Tips on Training Supervisors
Tips on Using Fitness for Duty Exams
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Reasonable Accommodation
Unlawful to fail to make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such employer.
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Reasonable Accommodation
Reasonable accommodation involves the removal of workplace barriers
Reasonable accommodation may include:
– remove or alter physical barriers;
– change or make exceptions to procedures and rules;
– job restructuring;
– part‐time or modified work schedules;
– reassignment to a vacant position;
– acquisition or modification of equipment or devices;
– appropriate adjustment or modifications of examinations, training materials or policies; and
– the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.
An employer need not:
– create a new position
– eliminate an essential function of the position
– provide “personal use items” such as wheelchairs , eye glasses
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Undue Hardship
The term “undue hardship” means:– an action requiring significant difficulty or expense.
Factors to be considered:– the nature and cost of the accommodation needed;
– the overall financial resources of the facility;
– the number of persons employed at such facility;
– the effect on expenses and resources; and
– or the impact otherwise of such accommodation upon the operation of the facility.
Resentment of other employees is only relevant if they are being overburdened
Examine each request on an individual basis
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Reassignment
Reassignment
Temporary: While disability affects job duties
Permanent: When no other accommodations are reasonable or all others pose undue hardship, or employee and employer agree transfer would be best
Vacant position only, but vacant includes those that will become vacant within a reasonable time after the request
What is “reasonable time”?
Must give preference over more desirable employees
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Leave as an Accommodation
Long‐term Leave of Absence
Usually a greater obligation than FMLA, but does not need to be indefinite
May be used in conjunction with reassignment (leave for some period of time to determine whether a position will become vacant)
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Leave as an Accommodation
Intermittent Leave
After FMLA is exhausted, analyze as undue hardship
Document impact – Overtime costs
– Unfinished projects
– Declines in customer service
– Inefficiencies and stress on management
Generally, unreliable/unpredictable attendance need not be accommodated– Revise job descriptions
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Unreasonable Accommodations
“Reasonable” can mean “feasible” but sometimes not– Cost v. benefit
– Case specific
– Argument usually also addresses “undue hardship” analysis
Switching supervisors is generally not a reasonable accommodation
Irregular, unpredictable attendance is generally not reasonable
EEOC takes the position that working from home is a reasonable accommodation unless job cannot be performed from home (e.g., waiting tables); Ninth Circuit has agreed
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Triggering Events
Events that may trigger accommodation obligation include:
Mere knowledge of disability is not enough
Employee request for accommodation– Need not say “ADA accommodation”
– Even if initial request is unreasonable
Medical provider recommendation
Knowledge of disability and performance issue that might be related
Return from medical leave
Light duty assignment while on workers’ comp
Employee’s duty to ask may be eliminated if he or she thinks there is no use in trying
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The Interactive Process
Mandatory process
Exchange of information between employer and employee
Shared goal of determining whether reasonable accommodations exist
Process will generally include:– Analysis of job functions (essential v. non‐essential)
– Identify barriers to job performance
– Learn precise limitations
– Identify possible accommodations
Process may also aid in determining preliminary steps– Is the employee “disabled,” “qualified” etc.
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The Interactive Process
Step Zero: If there is an easy fix, fix it.
Informal non‐accommodation – not an accommodation, just assistance
“How can I help?”
Just do it
Document, document, document
– Asked what they needed
– Got it for them
– Didn’t ask about anything medical
Follow up
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The Interactive Process
Step One: Determine if a disability exists and whether an accommodation is needed.
Advise employee of accommodation obligation.
“You are not meeting this expectation, is there anything the company can do to help you be successful?”
Gather information from medical provider.– When disability is not obvious, employer can ask for nature, severity, duration, etc.
– Employee’s own health provider unless insufficient
Is there any aspect of the job that employee cannot perform because of the disability?
If yes, why not? Which functions? Duty to accommodate.
If no, no obligation to accommodate.
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The Interactive Process
Step Two: Brainstorm accommodations that might allow the employee to perform those essential functions identified by the medical provider.
Ask medical provider for suggestions.
– Be mindful of GINA
Involve employee, supervisor, and interested agencies.
Job Accommodation Network (www.askjan.org)
Document the process.
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The Interactive Process
Step Three: Assess reasonableness of options.
Is it possible?
What would it cost?
Document assessment process.
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The Interactive Process
Step Four: Select an accommodation.
Document reasons.
Employer picks accommodation, not employee.
Employee’s refusal, no longer qualified.
If no accommodations work or would be “reasonable”, repeat process before termination.
Just try it!
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The Interactive Process
Step Five: Implement the accommodation.
Communicate with employee.
Limit communication to co‐workers.
Clearly define nature and duration of accommodation.
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The Interactive Process
Step Six: Monitor the accommodation.
Require periodic medical updates: is the accommodation still necessary?
Review with supervisor: is it working? How can the work environment be improved?
Modify when appropriate.
Wash, rinse, and REPEAT.
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The Interactive Process
Things to Keep in Mind Throughout the Process:
Time is of the essence– Avoid unreasonable delay claim
– Court cases focus on details
– Short staffed? Doesn’t matter.
Be flexible– Give employee the benefit of the doubt
– One day late? Let it slide.
Whoever drops the ball loses– Don’t let it be you
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The Interactive Process
Troubleshooting Tricky Situations:
Employee won’t sign release
– Employee must participate in process
– Employer has right to info
– Don’t need to give accommodation in meantime
– But don’t put them on leave if you can help it
Employee’s doctor is causing delay
– Employee is responsible for non‐responsive doctor
– Offer IME
Nosey Nellies
– ADA prohibits disclosure of “medical” information, including, perhaps even the existence of an accommodation
– Just answer naturally with “we are acting for legitimate business reasons or in compliance with federal law.”
– “We have a policy of assisting any employee who encounters difficulties in the workplace.”
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Managing Performance
Performance issues discovered while employee is on leave
Often surface through temp staffing
Employers ARE allowed to consider such issues
Consider timing of notification/discipline
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Managing Performance
Performance issues caused by or intertwined with disability
Danger zone
Gambini case
Consider calling your friendly, neighborhood employment lawyer
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Managing Performance
Make sure expectations are clear
Isolate each issue and address separately
If employee claims certain issues are connected to disability, get documentation
– Letter to treating physician
Explore possible accommodations
Continue discipline process for issues unrelated to disability
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Managing Performance
Don’t force a connection!
– Document response
– If employee says no, you may generally continue discipline process
– Don’t second guess documentation
• Released to work with no accommodations? Go forth and discipline.
Avoid last minute disclosures.
– Early on ask: “What do you believe is causing this performance concern?”
– Early on state: “If you believe your conduct is related to a medical condition, please contact…”
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Out of Options
No reasonable accommodation exists or poor performance continues
– Review possible accommodations one more time!
Reassignment?
Letter to physician
– Detail essential functions and poor performance
– Detail accommodations already tried
– Ask if there is anything else the company can do
– Highlight paid leave options/LTD
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Out of Options
Discuss physician’s response with employee
Discuss options
Don’t force leave of absence
Explain consequences of staying in position
Continue with discipline
Consider severance/transition package
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Training Supervisors
Make sure supervisors know when to contact HR
– Employee discloses disability to supervisor
• It’s okay to express sympathy
• “How can I help?”
– Employee asks for an accommodation
– Employee uses medical issue as excuse during performance management
– Supervisor observes conduct that may be related to a disability
– Employee requests more than 3 days off for illness
– Employee is pregnant
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Training Supervisors
Consider limiting additional training
– Supervisors should not:
• Try to apply definitions of “disability”, “qualified individual”, etc.
• Determine whether documentation is sufficient
• Determine whether requested accommodation is necessary
• Determine – alone – whether accommodation is feasible
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Training Supervisors
Maintain confidentiality
– Medical information should not be shared with supervisors
– Documentation maintained in separate file
– Share information only as it relates to necessary restrictions, first aid/safety, or emergency treatment
– Consider taking risks in limited situations
• Seek legal counsel first
• Privileged communications
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Fitness for Duty Exams
A medical examination of a current employee to determine whether the employee is physically or psychologically able to perform the job.
Must be job related and consistent with business necessity.
May be appropriate when:
– Employee returns from leave
– Observed behavior suggesting employee cannot perform essential functions of position
– Concern that employee poses a “direct threat”
– Don’t force a connection unless concerns for safety
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Fitness for Duty Exams
Who should perform exam?– Generally, give employee a chance to work with his or her own medical
provider.
• If documentation is insufficient, provide chance to correct.
– If documentation continues to be insufficient or additional concerns exist, employer may choose provider.
• Employer must pay costs associated with exam.
• Direct health care provider to NOT ask about family history
Insufficient documentation– Vague, incomplete
– Concerns about qualifications of provider
– Provider has incomplete information
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Fitness for Duty Exams
Require leave pending exam?
Deviating from general guidelines may be appropriate for safety‐sensitive positions.
Consider other options.
– Physical capabilities assessment that is not a “medical examination” under the ADA
– Allow employee to perform, document observed additional challenges, justifying a request for a second opinion
