With the Americans with Disabilities Act (ADA) turning 26 this year, any business that has 15 or more employees should be well acquainted with its requirements to “reasonably accommodate employees with disabilities in order to enable them to perform their essential job functions.” Many managers still struggle with what is required. In fact, that well-worn phrase leaves out a key tool in the employer’s arsenal in managing the requirements of the ADA: the interactive process.
The interactive process intimidates many employers because it seems so open-ended. Importantly, it is a tool to allow good employees who face permanent or temporary functional limitations to perform their jobs and produce the results the employer needs. In addition, it is a tool for employers to regain control over employees with performance problems. Either way, embracing the interactive process helps your organization.
Many organizations have experienced frustration and a feeling of erosion of control when an employee misses work, or keeps unpre- dictable hours, claiming that doctors’ appointments are impacting their ability to come to work. Employers who do not understand the interactive process may allow this situation to persist or progress to the point where they feel like they are at the end of their rope, and cannot do anything about it because the person “might be disabled.”
In many cases, this could not be further from the truth. The boogey-man of doctors’ appointments (or stress or any other ailment) may put the employee into a protected category, but that is only step one of the interactive process. Many do not even recognize that step one has already occurred, requiring action. If an employer believes, or has reason to believe, that an individual may have a disability and may need reasonable accommodations to allow the employee to perform their essential job functions, the employer has an OBLIGATION to inter-act with the employee to determine if an accommodation is needed.
The accommodation is the essential inquiry, not the disability. For the first ten years of the ADA, businesses in this country spent millions of dollars arguing about what constituted a disability. Frankly, the ADA has always protected employees who are “perceived to have a disability,” and that language casts a very wide net. Now, even short term injuries which interfere with a major life function can qualify as disabilities. Therefore, it is best to focus efforts on reasonable accommodations, rather than whether or not there is a qualifying disability.
Since the interactive process has started, what next? The employee should be advised in writing that, while the company does not intend to suggest that the person has a disability, certain information has come for- ward, and if the person wishes to engage in the interactive process to determine whether a reasonable accommodation is needed to allow the employee to perform the essential job functions, the employee should engage in the interactive process. Remind the employee that your company is committed to equal employment opportunities and adheres to the ADA. At this point, one of two things will happen: the employee will ignore the letter and the employer can stop worrying about an unknown disability and treat the employee like any other person. Alternatively, the employee will ask what this means. At that point, the employer is allowed to request a significant amount of information from a medical provider about the functional capabilities of the employee and the accommodations that the medical provider thinks are needed. It is important that a job description is included so that the medical professional is able to identify the essential job functions.
The medical information request is limited to the person’s abilities, not containing diagnostic information, and the form should be reviewed by a professional in order to ensure that the right information is being requested. However, once the medical professional returns the form, the employer then has objective information to evaluate any request for accommodation. Sometimes, the accommodation can be a very simple fix readily available at a hardware store or Staples for under $50. Provide this to the employee, and the employee can then be treated on the same basis as other non-disabled employees. Sometimes the suggested modifications are more extensive, and what constitutes a reasonable accommodation will be evaluated on a case-by-case basis. However, the medical status form gives both the employee and the employer a common basis to discuss what accommodations can be provided.
Perhaps one of the most important outcomes of the interactive process is what happens after people decline participation in the process. The employee who is missing significant amounts of work or coming in late because of doctors’ appointments, and who does not follow through on the interactive process can then be subject to ordinary discipline policies. If the person does not seek an accommodation under the ADA, the employer does not have to treat the person in a special way. Instead, for these employees, the invitation to engage in the interactive process often serves as a tangible signal that the employer is not going to put up with the nonsense anymore, and the employee either needs to shape up or ship out.
Engaging in the interactive process is an obligation imposed on employers by the ADA, which has enabled many new workers to enter jobs in the last decades. More than that, it can be an extremely effective tool to assist with managing a workforce fairly and efficiently with high standards.