The American with Disabilities Act has gotten more powerful in the last six months with the passage of the ADA Amendments Act, which expands the definition of a disability and overturns four Supreme Court rulings related to the law. The ADA is now the top concern for employers in 2009, according to HR Focus magazine. Michael Soltis, managing partner of the Stamford office of workplace law firm Jackson Lewis, says companies’ best course of action is to engage in an what the ADA calls an “interactive dialogue” that will help protect companies while giving employees with disabilities a method to make the strongest case possible for their accommodation needs.
Q: Mike, what’s an interactive dialogue?
A: It’s a process that helps the employer determine whether a reasonable accommodation is necessary, reasonable and feasible to enable an employee to remain in his or her position. The court considers the interactive dialogue as one way in which the company can show its efforts to address the request for accommodation. At the same time, it helps the employee to strengthen his or her case for an accommodation because they’re supplying the employer with relevant facts, such as a medical note, needed to assess the situation more acutely. That’s why the whole dialogue should be documented, on both ends.
Q: How does an interactive dialogue work?
A: There’s no set approach, but there are a few principles that have been established in court. One is that both employer and employee must dialogue appropriately. This is a good-faith issue that says both parties must work together in the search for a reasonable accommodation. It is the employee’s job to educate the employer on what he needs, but the employee needs to be open-minded as well. He can’t insist on a single, unreasonable accommodation. That would cause the breakdown of the interactive process.
Q: When does the accommodation discussion need to happen?
A: It’s either triggered by the employee, who requests the accommodation, or by the employer, who recognizes the need to have the interactive dialogue. But an employee doesn’t need to use any specific words when making a request. They should use plain English and need not mention the ADA or the phrase reasonable accommodation. What matters isn’t the formality, rather that the employee provides the employer with enough information so that the employer can deduce both the disability and the desire for an accommodation. It’s not even necessary for the worker to suggest certain remedies. This is up to the employer to figure out. But at the same time, the employer isn’t a mind reader. There’s a case where someone asked for an accommodation and then sued her employer for not providing the specific one she wanted. The other thing is that the request has to be timely. You can’t wait until you’re fired or caught sleeping on the job to ask for an accommodation. That’s not an accommodation – that’s a second chance in the court’s eyes.
Q: How does an employer start the interactive dialogue?
A: There’s a bit of homework involved at first. First, they should analyze the particular job involved and determine its purpose and essential functions. Second, they need to consult with the individual to ascertain the precise job-related limitations and how those limitations could be overcome with a reasonable accommodation. The third step is to work with the individual to identify potential accommodations and assess the effectiveness each would have. And fourth, consider the preference of the individual to be accommodated and select the accommodation that is most appropriate for both the employee and the employer.
Q: What if the dialogue doesn’t lead to a reasonable accommodation?
A: Engaging in the dialogue does not mean that an accommodation exists. Sometimes, a disability cannot be accommodated without undue hardship. A company may be able to terminate a disabled employee after concluding that it cannot reasonably accommodate the individual, but they should make every effort possible, including looking into vacant positions elsewhere in the company for which the employee is qualified. Where no reasonable accommodation exists, however, an employer need not continue to engage in a futile dialogue.
Q: What happens if the interactive dialogue doesn’t work and the employer is sued?
A: The court will look at the interactive process to determine whether there’s evidence to show that one party’s bad faith caused the breakdown in dialogue. The dialogue is a means to an end, the end being the identification of a reasonable accommodation. Generally, an employer who fails to dialogue appropriately violates the ADA only if a reasonable accommodation existed and they didn’t seek it out or implement it. However, in some states, an employer’s failure to engage in the interactive process is a per se violation of the state’s anti-discrimination law, regardless of whether an accommodation exists.
Q: What’s something an employee might not know about the interactive dialogue and the ADA?
A: During this time, an employer has the right to ask for relevant information including a medical note from a doctor. The note doesn’t have to discuss the specifics of the condition, just that the employee may need an accommodation for certain symptoms.