HR Management & Compliance

Interactive Process Requires More Than Just Lip Service, But When is Enough Enough?

The Americans with Disabilities Act (ADA) and similar state laws prohibit discriminating against a qualified employee or job applicant on the basis of an actual or perceived disability. The ADA requires you to engage in the interactive process with an employee who has requested an accommodation to determine if it will permit the individual to perform the essential job functions. It may be difficult, however, to identify when you have done enough to fulfill the obligation, particularly when no accommodation can be identified. Read on to find out what one employer did to fulfill its obligation and whether it was enough to avoid liability.

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Steel-toed Boot Aggravates Employee’s Damaged Foot

James Sharbono was injured by an electric shock on a job site in 1991. He suffered damage that required surgical reconstruction of his left foot and the amputation of several toes. After rehabilitation, he returned to work as a journeyman lineman for several different employers, although he was medically restricted from wearing steel-toed boots. He started working for Northern States Power Company in 1993 and became a full-time journeyman lineman with the Minnesota business in 1997.

Before 2008, Northern’s safety policy required employees facing certain hazardous work conditions to wear “safety-toe footwear” that met the requirements of the American National Standards Institute’s standard Z41. The company permitted an exception, however, based on a note from the employee’s doctor “stating he/she cannot wear safety-toe footwear.” Accordingly, Sharbono did not wear a steel-toed boot on his previously injured left foot while working for the company before 2008.

As of 2008, however, Northern’s personal protective equipment policy no longer allowed for exceptions. The company’s revised policy mandated that certain employees, including Sharbono, had to wear safety footwear. The policy also required the footwear to be marked with a stamp that showed compliance with an international performance standard for safety footwear known as

F2413. Northern then required Sharbono to begin wearing steel-toed boots.

Through a disability consultant, Northern offered Sharbono several suggestions to help mitigate the impact of the steel-toed boots. The employee also obtained modified boots, but they weren’t certified as compliant with the ASTM standard, so the company wouldn’t allow him to wear them. He began wearing steel-toed boots that were stamped as compliant but started to experience discomfort in his left foot. Over the next several years, he continued to experience pain from wearing the boots.

In 2011, Sharbono increasingly used sick leave to cover his absences from work. In November of that year, he began taking intermittent leave under the Family and Medical Leave Act (FMLA). In an April 2012 meeting with a supervisor, he also requested an accommodation from Northern for his foot impairment. He submitted an additional doctor’s note saying it was medically necessary for him to cease wearing the steel-toed boots, but he received no response from the supervisor.

In June 2012, Sharbono’s union asked Northern to waive the steel-toed boot requirement. In August, the company denied the requested accommodation. In a letter, the company explained that it was sticking to its standard because it “cannot eliminate the potential foot hazards that are present in the daily work of a lineman.” Northern explained that “granting this waiver would be a violation of Company policy and a violation of OSHA standard 1910.136.”

In October 2012, Northern offered to help Sharbono find another position at the company during what it called a 90-day job search. The company also informed the employee that the collective bargaining agreement made him eligible for “disability retirement benefits,” including pay at roughly 50 percent of his base income and insurance benefits. Sharbono chose to retire and receive the benefits.

In November, Northern representatives discussed Sharbono’s request to retire and receive the disability retirement benefits. The company arranged a medical appointment for the employee, and the evaluating doctor opined that he should be able to obtain a compliant, modified boot from an orthotics company.

Northern’s manager of disability solutions contacted the orthotics company, which first said it could acquire the desired boots. On further inquiry, however, a manufacturer told the orthotics company that the footwear could not carry the “ASTM F2413-11 stamp” unless someone from the Occupational Safety and Health Administration (OSHA) observed the boot-making process. The orthotics company then informed Northern that while a custom boot could be manufactured, it could not be stamped with the ASTM seal of approval. Northern then informed Sharbono that it was placing him in a retired status with disability retirement benefits.

Sharbono sued, alleging several ADA violations. The U.S. 8th Circuit Court of Appeals (whose rulings apply to all Missouri employers) recently upheld the lower court’s dismissal of the claims without a trial.

How to Engage in ADA Interactive Process

The ADA prohibits employers from discriminating against qualified individuals on the basis of a disability. Discrimination includes not making reasonable accommodations for an employee’s “known physical or mental limitations” unless the employer can “demonstrate that the accommodation would impose an undue hardship on the operation of the business.” To determine whether an accommodation is necessary and, if so, what it might be, the employer and the employee must engage in the interactive process. The employer isn’t required to undertake the process until the employee requests an accommodation.

To establish that the employer failed to participate in the interactive process, the employee must show that it knew about his disability and that he requested an accommodation. The employee must then prove that the employer didn’t make a good-faith effort to assist him in seeking accommodations.

8th Circuit Rejects Employee’s 3 Arguments

Sharbono contended that Northern didn’t make a good-faith effort to assist him. First, he argued that the company engaged in an “inexcusable delay” because it didn’t respond to his October 2011 accommodation request in a timely manner. He couldn’t recall, however, whether he actually asked for an accommodation in that 2011 meeting with his supervisor, whose notes also didn’t mention such a request. The earliest request supported by the evidence occurred in April 2012. Northern responded within four months, and Sharbono was paid during the interim while using sick leave. Under the circumstances, the court found the timing of the company’s response was sufficient.

Second, Sharbono argued that Northern prematurely abandoned the interactive process. He complained that after the orthotics company notified Northern in February 2013 that it could not produce a boot that qualified for the ASTM stamp, Northern failed to pursue more options to find a conforming boot. But the court found that once the employer was informed by an industry expert that it couldn’t produce a boot meeting Sharbono’s needs and qualifying for the ASTM stamp, it was reasonable for the company to discontinue its efforts. The employer tried in good faith to find a solution that would permit the employee to work. It ceased looking only when it was informed that the objective of a stamped, compliant boot was not achievable.

Finally, Sharbono argued that Northern erroneously claimed that federal regulations require its employees to wear stamped boots and that the company’s reliance on the rules showed its lack of good faith. The regulation at issue seems to permit footwear if an “employer demonstrates” that the footwear “is at least as effective as protective footwear that is constructed in accordance with one of” several enumerated industry safety standards. But Sharbono never disputed the company’s interpretation of the regulation during the interactive process, and Northern made good-faith efforts to secure a boot that met the performance standards for safety footwear and bore the ASTM stamp.

Ultimately, the 8th Circuit found that Northern interacted with Sharbono in good faith. The employer met with the employee about his accommodation request twice in 2013 and offered to help him with the process of applying for a different job with the company. After he elected to retire with disability retirement benefits, the employer still attempted to find a boot that would allow him to work.

Bottom Line

In the realm of disability discrimination, this case demonstrates the importance of engaging in the interactive process. It may not always be possible to identify an accommodation, but failing to engage in the process in good faith can lead to a discrimination claim, regardless of whether an accommodation is possible. Be certain that your supervisors or other appropriate individuals are well-versed in the interactive process and understand when to begin discussions with the employee.

Jeremy Brenner is an employment law attorney with  Armstrong Teasdale LLP, practicing in the firm’s St. Louis office, and a co-editor of Missouri Employment Law Letter. He may be contacted at jbrenner@armstrongteasdale.com.