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EEOC: ‘Interact Before You Act’ on Disability Accommodation

The 2008 ADA Amendments Act (ADAAA), which went into effect on January 1, 2009, greatly expanded the number of medical conditions that likely will be recognized as disabilities under the law. More disabilities mean more accommodation requests and more opportunities for employers to be second-guessed by the government and the courts on how they respond to those requests.

The Equal Employment Opportunity Commission (EEOC) recently added to that burden. Now, in addition to making the right call, employers must reach the decision the right way, through what the agency deems the “interactive process.” Let’s take a look at what that entails.

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A beginning
The Minnesota Employment Law Letter editor, Dennis Merley, recently spoke to a national audience on how to address and accommodate sensitivity to odors, chemicals, and scents in the workplace. Naturally, there were questions about how an employer is supposed to know whether these are real medical issues or just preferences and how far you must go to eliminate offending substances and smells in a work environment.

There is no tried-and-true solution. An employer faced with a request to accommodate odor sensitivity in the workplace must evaluate the request the same way it would any other request for a disability-related accommodation. Resorting to one-size-fits-all policies must be resisted in favor of a case-by-case analysis. You may still come up with the same answer, but in this area of the law, the route you take is every bit as important as the actual destination.

In its publication titled “Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act,” the EEOC interprets how the method of the analysis, identified as “the interactive process,” should take place. While EEOC guidance doesn’t have the full force of the law, it does indicate how the agency interprets the law and evaluates employers’ obligation to consider and implement reasonable accommodations. Since the commission often sues on employees’ behalf and since courts give significant deference to the views of government agencies, you are well advised to understand the interactive process and how it helps resolve accommodation requests.

One of the principles underlying the EEOC’s faith in the interactive process is that most employers usually aren’t very familiar with the medical conditions presented by their employees. To make a well-reasoned decision on whether an employee can be accommodated, you need to know the restrictions the condition imposes. It’s also helpful to hear how the employee deals with the condition outside the workplace and what options might be available to overcome the obstacles he will face. It’s the same approach you would use if a piece of equipment stopped working: You’d want to be sure the technician fully understood the problem before telling you how to fix it. The same idea applies to disability accommodation and the interactive process.

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The long and winding road
Let’s assume that an employee comes to you and says he has difficulty breathing, gets headaches, and feels dizzy whenever he works near the paint line. Granted, everyone gets a little woozy around fumes sometimes, but you need to find out if there’s something more to the employee’s complaint. Ask him to see a health care provider so you can be sure you’re dealing with a bona fide medical issue. Ask the doctor to answer the following questions:

  • In very general terms, what is the nature of the medical condition?
  • What restrictions does the medical condition impose on the employee?
  • How long might those restrictions last?

The employee might resist, accuse you of not trusting him, or try to persuade you that he already knows what the problem is. Be firm, and remind him that he’s not a doctor (presumably) and that you need to hear what you’re being asked to deal with from the expert.

The employee should return with the doctor’s certification of the medical condition. Remember, it’s the doctor’s responsibility to report the employee’s condition and restrictions, but it’s an employer’s right to decide what accommodations to offer. It’s not unusual for a doctor to write that because of the employee’s medical condition, he can’t “lift the mailing bundles,” “work in the back room,” or (my favorite) “work on Fridays.”

Of course, the doctor has never been inside your facility. Thus, he has never seen a mailing bundle, he doesn’t know what’s in the back room, and he has no idea what happens on Fridays. Nevertheless, you certainly have to listen to what the doctor tells you about the employee’s limitations (e.g., that he’s restricted from working near paint fumes or lifting more than 25 pounds), and you may certainly consider the suggested accommodation, but in the end, it’s up to you to decide how to accommodate the employee. In the case of the dizzy paint worker, you could move the employee, enhance the air circulation, or take some other action to accommodate the restriction.

Americans with Disabilities (ADA) Compliance Manual

Come together
Once the doctor reports on the medical condition, the interactive process gears up. But first, make sure you fully understand what the doctor is telling you. You might need to ask for more details. You can speak to the employee or directly with the physician (provided the employee authorizes it).

If the doctor’s note is clear, you should talk with the employee about what steps can be taken. The employee may have lived with and overcome the disabling condition for many years and have a variety of suggestions that might work. Simply asking “What do you suggest?” or “How do you deal with that at home?” can provide valuable insight and may offer possible solutions that are more effective and less costly than the ones you’re considering. Of course, you might get a response that is completely self-serving or impractical. But remember, the law doesn’t require you to provide the accommodation requested by the employee. You are free to go in a different direction.

After speaking with the employee, it’s often helpful to research the condition on your own. After all, chances are you aren’t particularly familiar with the employee’s medical issue or what options might exist for accommodating it. If you have a company physician or a doctor you often use for independent medical exams, you might set aside some time to talk or perhaps get a referral to a specialist.

In addition, there are advocacy groups for a vast array of disabling conditions, and they’re generally willing to help bring an employer up to speed. Perhaps a rehabilitation specialist or other expert is available to assist. The point is, you should avoid making medical decisions on medical matters in which you lack sufficient knowledge. After all, how can you assert that you found a suggested accommodation to be unreasonable or too great a hardship when you don’t really understand the medical condition to begin with?

Once you have the information to make an informed decision about possible accommodations, look at all the options. Even if a suggestion seems unreasonable or outlandish, at least take a few moments to consider it. If the option isn’t feasible, determine why, and move on to the next option. If the case goes to court, you want to be able to explain that you really did look at the big picture.

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The end
As with everything in the HR world, be sure to document your deliberations. When a reasonable accommodation charge is filed with the EEOC, the agency will usually ask to see the documentation of your efforts to accommodate and evidence that the accommodation would be a financial or administrative hardship. Don’t just assume the commission will accept your explanations after the fact, even if the reasoning is sound. Remember, the EEOC is looking not only to see what decisions you made but also for the process you used to make them. Remember junior- high-school math — when you not only had to get the right answer but also had to show your work? Same idea!

After implementing the accommodation you select, be sure to monitor the situation to determine if the accommodation is effective. If not, you might need to consider other accommodation options. If the chosen method works, you’ve done a great job navigating the interactive process and can enjoy the sweet smell of success ? as long as you aren’t allergic to it.

All together now
Accommodating employees through the interactive process is probably something you’ve been doing for a while without realizing it had a label. After all, it really is little more than listening to the employee, learning about the issues, and making good decisions. Hopefully, that’s the way you approach all HR matters. According to the EEOC, the difference is that how you make the decision seems to be as important as the decision itself. Now that you know that, follow the process, document your decision making, and make good choices.

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