Advanced Topics in HR Management: When to Enter Into the ADA Interactive Process

The Americans with Disabilities Act (ADA) is a federal law enforced by the Equal Employment Opportunity Commission (EEOC). Although the ADA has broad requirements, this article focuses solely on when an employer should enter into “the interactive process” to make an accommodation determination. “The interactive process” is a legal term that refers to the ongoing dialogue between employer and employee about the need for accommodation and the types of accommodations that might be both reasonable and appropriate.

It is commonly believed that an employee must specifically request an accommodation in order to trigger the employer’s duty to enter into the interactive process. Indeed, it is a good practice to make a policy directing employees to use a specific but non-burdensome process to make accommodation requests. However, a recent federal court decision suggests employers should be cautious about strictly enforcing internal request procedures. The ruling came from the Tenth Circuit, which is the federal court of appeals with jurisdiction over Oklahoma. The Court wrote:

[U]nder the ADA, an employer ordinarily has no obligation to engage in the interactive process or provide a reasonable accommodation unless the “employee provid[es] notice to the employer of the employee’s disability and any resulting limitations.” To provide the employer with notice, the employee “must make an adequate request” for an accommodation. This request must be “sufficiently direct and specific,” and “make clear that the [employee] wants assistance for his or her disability.”

In short, under the ADA, an employer does not have a duty to provide a reasonable accommodation unless one is specifically requested by an employee.

If you stopped right there, you might conclude that the court will demand evidence the employee has claimed a disability and made an explicit request for an accommodation. However, the devil is always in the details of a court opinion. Just how “sufficiently direct and specific” must an employee be? The Court went on to say:

[T]he requirement of specific employee notice under the ADA is logically compatible with the nature of the data necessary to trigger the employer’s reasonable-accommodation obligations. “[T]he employer must know of both the disability and the employee’s desire for accommodations for that disability.” Mere awareness of the disability is insufficient because the employer remains unaware that the employee desires an accommodation for his or her disability. Therefore, in order for the employer to gain knowledge of both of these facts, ordinarily the employee will need to tell the employer.

The critical thing to understand is that the Court did not say, “Employees must follow company policy and fill out a specific form with specific information before the employer’s obligation to enter into the interactive process is triggered.” Instead, the Court said that the employer must enter into the interactive process if it knows of an employee’s disability and of the employee’s desire for accommodation of that disability. Behind the tough-sounding rhetoric is a fairly low standard. Consider the following examples.

  • Employee has obvious, severe near sightedness. After a short time at the job for which he was hired, he is re-assigned to another job due to low productivity. The employee complains that he does not want to be in the new job, and tells his supervisor he can perform according to company standard using a ring-lamp with a magnifying glass that he can bring from home.
  • The employee is an amputee, missing one of her arms. Her job is to enter data based on paper forms and information provided by clients over the phone. Her supervisor notices she takes a lot of breaks, which is driving down her productivity. The employee reports that her neck hurts from clamping the phone with her head and comments that she had a headset at her old job. She mentions there is a special keyboard for typing one handed that would increase her productivity.
  • An employee who works as a receptionist with light clerical duties gets in a car accident. He talks openly with coworkers about the accident, the resultant back pain he experiences, and his upcoming leave for surgery and recovery. Upon return from leave, the employee notices that his work suffers because he cannot sit for long periods. He confides in his supervisor that he doesn’t want to lose his job but he is concerned about his productivity. He explains that his workstation does not meet the ergonomic specifications provided by his doctor.
  • An employee who works on an assembly line has carpal tunnel syndrome. His productivity declines over time. Naturally, his supervisor calls him in to talk about picking up the pace. The employee says he has carpal tunnel syndrome and asks if the company will permit him to work under a reduced productivity standard at a lower hourly wage.

The scenarios above were engineered to be ambiguous. Never did the employee say, “I have a disability and I want an accommodation for that specific disability.” Even so, one could argue that the employer was given both pieces of information necessary to trigger the interactive process. Before you dismiss that perspective as far- fetched, consider this: the situations above are more straightforward than some examples in the EEOC’s enforcement guidance on reasonable accommodation. For example, the enforcement guide considers this to be a request for accommodation: “I’m having trouble getting to work at my scheduled time because of medical treatments I’m undergoing.”

Understanding who decides whether an employee was “sufficiently direct and specific” in requesting accommodation helps to explain why ambiguous statements can trigger the interactive process. Generally speaking, the umpire will be either the EEOC or a jury, and neither of those options are particularly employer-friendly. EEOC enforcement agents spend a lot of time with people and businesses suspected of bad acts. They sometimes see companies as defensive and difficult to deal with. Things are no better in the jury box because everyone there has had a job they did not enjoy and a supervisor they did not like. In other words, employers have two strikes against them before the process has even begun, no matter who is deciding the company’s fate.

Therefore, HR professionals should be flexible in determining whether the interactive process has been invoked. Appropriate training for supervisors includes not only directing all requests for accommodation to HR, but also identifying and reporting more ambiguous situations like those in the examples above. Supervisors should also communicate with HR about productivity issues of persons known to have or suspected of having a disability before any tangible employment action is taken. Human Resources professionals should then take a close look into the facts of each case because the interactive process may have been invoked from a legal standpoint even though the company’s process was not followed.

Form I-9 is No Joke

Ketchikan Drywall Services is a small company with a few full time employees and twenty part time employees. The company made regular use of temporary employees. As with “permanent” employees, “temporary” employees also must have complete I-9 forms on file within three days of hiring. Like many companies, Ketchikan did not treat this administrative hassle with the respect it should command given the penalties for non- compliance. Instead, it made the mistake of confusing “good faith effort” with actual compliance. Ketchikan was notified of deficiencies in a 2000 audit of its I-9 records. Immigration and Customs Enforcement (ICE) audited again in 2008 and found several problems, including dozens of instances where there was no I-9 on file. Sixty-five I-9s had problems with section one. Section two was not filled out for over one hundred forms. Fifty-three employees’ forms were improper both in sections one and two. ICE was not impressed and levied a fine exceeding $250,000.

Ketchikan had ICE’s decision reviewed by an administrative law judge. At the hearing, the company argued it had substantially complied with I-9 requirements because employment eligibility could be determined by copies of supporting documents it had on file. Ketchikan argued that was true even where I-9 forms were incomplete or unsigned. Like ICE, the administrative law judge was not impressed. However, he reduced the fine to approximately $175,000. Ketchikan appealed to the Ninth Circuit Court of Appeals with the same basic argument it made before the administrative law judge: it had complied with the spirit of the law, copies of supporting documents were sufficient, and the fine was too high for mere technical violations.

The Appellate Court took note of ICE’s interpretation of the statute and determined that employers are required to examine employee document submissions and attest to the legal status of each hire: good faith is no substitute for actual compliance with the requirements of the statute. Consequently, the $175,000 fine was upheld. Naturally, that does not include the cost of preparing for the ICE audit or for twice litigating the fine.

Although the underlying case is from the federal appellate court with jurisdiction over the State of Washington, a similar result could occur under the same facts here in Oklahoma. HR professionals and employers should implement routine, internal audits to ensure I-9 forms are completely filled out, with the appropriate check boxes checked, and with signatures and dates.

Please do not hesitate to contact the Firm with any questions you may have about the effect of laws and regulations on your business or its operations.