The ADA: Understanding and Using the Interactive Process to Make Informed Decisions about Requests for Reasonable Accommodation

Sharon Rennert

Senior Attorney Advisor

ADA/GINA Division

Key to Understanding/Using the

Interactive Process

• Individualized Decision-making

– Standardized questions for individuals and their health care

providers problematic and increase chance you will not get

helpful information

• Flexible Process

– Don’t necessarily always need to get information from

individual’s health care provider; may or may not need to

get information from JAN or disability organization

– Number of conversations you need to have with individual

will differ

• Get and use facts about applicant/employee and do

not rely on assumptions or generalizations about the

disability, the job, and the ability to perform the job

Reasonable accommodation

• Defined:

– A reasonable accommodation is a change in the

workplace, or in the ways things are usually done,

that provides equal employment opportunities for

individuals with disabilities

– General rule: An employer provides a reasonable

accommodation to a qualified individual with a

disability if requested and if doing so does not pose

an undue hardship

3 Areas Where Employers May

Have To Provide Reasonable

Accommodations • Application Process

• Accommodations that enable an employee to perform her job or to gain access to the workplace (includes, e.g., bathrooms, cafeterias)

• Benefits and Privileges of Employment– Mandatory or voluntary training/staff meetings

– Employer-sponsored parties: Even if off-site and outside business hours

– Employer-sponsored programs/special events

Make Sure Request Cannot Be Handled Under

Employer’s Own Program

• In some instances requests for leave, telework, altered schedule, ergonomic equipment can be addressed through an employer’s own program without resorting to reasonable accommodation process

• Employees with disabilities entitled to same access to employer-provided programs (no disparate treatment)

– Example: Employer has telework policy permitting up to 3 days of telework per week. Employee requests 2 days per week due to disability. Handle request under employer’s program.

– Example: Employee with disability asks to arrive at 10 a.m. rather than 9 a.m. for next 2 weeks due to medical treatment, and make up time at end of the day. If such adjustments would be granted to any employee, for anyreason, no need to handle as a reasonable accommodation issue.

Interactive Process • Process usually starts with a request from an

applicant/employee – No “magic words” needed

– Individual must tell employer that she needs something from the employer because of her medical condition

– Need not be in writing

– May come from someone other than the individual needing the accommodation (doctor’s note)

• Employer may obtain information to determine if the individual’s medical condition constitutes a disability and/or to verify/understand the need for accommodation

• Critical to obtain relevant information to make an informed decision

• Each request handled individually; no cookie cutter approach– A question relevant to one request may be irrelevant to another

– Avoid assumptions about a disability or a job

• Cooperative Process!

Questions Related to Whether a Disability Exists or Why

Accommodation is Needed

• Thanks to ADAAA, less focus on whether disability exists – But, that doesn’t mean never appropriate to verify (e.g., back

impairments)

• Main focus: why accommodation is needed– Critical to understand exact nature of limitation or problem, what in the

workplace/job duties triggering limitation/problem, and how a proposed accommodation would minimize/eliminate the problem

Hypothetical Situation

• Employee requests 6 months of full-time telework because of depression and anxiety disorder

• Employer asks that employee’s doctor “explain what limitations require this reasonable accommodation”

• Here is doctor’s response:– “[Employee] suffers from major depression and anxiety disorder. This

condition is long term and is exacerbated by stressful conditions within the work environment which is creating other medical issues. [Employee] would benefit from full time telework as an accommodation for the next six months while starting a new medication therapy. [Employee] can accomplish her tasks from her home office which will limit an increase in her stress and anxiety levels. She has no physical limitations and is able to perform the duties of her position from home.”

• Employer called me because there was a split opinion: one manager said this was sufficient to grant requested accommodation and another manager said no it was not

• What is your opinion and why?

Questions Related to Whether a Disability Exists or Why

Accommodation is Needed

• Can (and often need to) ask carefully-developed questions designed to understand the problem and how a particular accommodation would address it

• Risk of asking questions that are too general (what limitations does the employee have as a result of the medical condition) is that the individual and the health care provider will not understand what you are trying to learn

• What limitations does the individual have as a result of the medical condition:• Are you asking about major life activities in order to determine if

condition is a disability?

• Are you asking about limitations that necessitate any reasonable accommodation?

• Are you asking about limitations that necessitate specific form of reasonable accommodation that is being requested?

• All of the above, some of the above, something else entirely?

Questions Related to Whether Accommodation

Will Permit Performance of Essential Function(s)

• If reasonable accommodation required to perform essential function, important to focus on how/whether requested accommodation (or an alternative) achieves this objective

• Possible for reasonable accommodation to address medical limitation (e.g., need to telework) but perhaps not permit performance of an essential function – Must ensure that reasonable accommodation meets both

needs

How Long Does Employee Need an Accommodation

• Generally, accommodations should be given for a certain period of time after which they end or employee must ask to continue them (not imposing arbitrary renewal or end date but rather such dates stem from acquiring information during the interactive process on length of time accommodation needed)

• Remember that relatively short term impairments can be disabilities which impacts length of time accommodation provided– If disability will last 6 months, with no lingering effects, then a

reasonable accommodation should not be provided for a longer period (expiration date)

– If it turns out disability lasts longer than anticipated, may ask what happened to change prognosis, basis of newest prognosis (e.g., will last only 2 additional months), and why this prognosis more likely to be correct than previous one

• Just because disability may be permanent or long-term does not necessarily mean need for reasonable accommodation is– Ask length of time a requested accommodation is needed and why

Best Practice: After First Conversation with Individual,

Explain What Will Happen Next in Evaluating Request

• Helpful to developing trust and understanding to explain next steps

• This includes explaining that you may/will be contacting supervisor, other relevant manager(s) or staff (e.g., IT department if request is for modifications to computer), individual’s health care provider (HCP)

• State that you will share relevant disability-related information only as necessary and anyone receiving such information bound by confidentiality– In some instances when seeking assistance, may not need to identify

person requesting accommodation

– May not need to identify disability but only limitations

• Note when you may/will seek information from outside sources (e.g., Job Accommodation Network or disability organization)

• Explain that you may seek additional information from individual as you gather more information from others

Questions for an Individual’s Health Care Provider

• Employers may consider whether helpful to get input from an individual’s health care provider (HCP): Are you asking question a HCP can answer?

• Developing questions for HCP should come after questioning the individual

• May be helpful to include information from individual in formulating questions to HCP/provide context for why you are asking certain questions

• Questions for HCP may focus on understanding exactly what the limitation/problem is, length of time a disability and/or specific limitation will last (and basis for the answer), how a specific accommodation will eliminate/minimize the problem, and possible alternative accommodations

• Try to avoid questions permitting yes/no answer, or if such questions used, ask HCP to explain – in plain English -- the basis for the answer

• Avoid generic questions or pre-written questionnaires because they tend to be over/under inclusive, waste a HCP’s time in answering unnecessary questions, and often neglect to ask relevant questions

• Do not provide job descriptions – ask about specific job duties that are at issue

• Do not assume HCP understands job duties/workplace requirements

• Avoid use of “legalese” (Examples: “substantial limitation,” “major life activities”), or provide plain English translation and/or give examples of legal terms to aid HCP in understanding what you are seeking

Questions for an Employee’s Supervisor/Office

Director

• Where requested accommodation affects performance of job duties, modifying attendance policies, or providing telework, supervisor (and maybe higher managers) need to be consulted

• Again, consulting supervisor/manager should come after initially speaking with employee

• Need to learn whether objective problems might exist if grant accommodation (that is, what is the objective evidence that might support a lawful determination that a requested accommodation will cause undue hardship or would not permit performance of essential function(s), or other lawful reason to justify refusing the request)

– Want to test/challenge if opposition is rooted in just “not liking” something or concerns that are not legally valid (for example, coworkers will want the same thing)

Best Practice: Keep Individual Informed of Where

You Are In the Process and Reason for any

Delays

• I think most of us have faced the frustration, whether at work or elsewhere, of asking for something and then feeling like we’ve been forgotten

• Updating an individual on the process and what is happening can be helpful

– Shows you have not forgotten the individual

– Shows you are working on the request

Reasonable Accommodation

• Almost unlimited possibilities

• May include:

– Sign language interpreters

– Modifications to existing equipment or

purchase/lease of new equipment that is

accessible to individual with a disability

– Modifying workplace policies

– Changes in the working environment (e.g.,

flashing warning lights for evacuations)

– Reassignment (last resort)

Reasonable Accommodation

• Actions not required:

– Removing an essential function (i.e., fundamental/critical job duty)

– Lowering production/performance standards (quantitative and qualitative)

– Excusing misconduct/performance deficiencies

– Providing personal use items, such as hearing aids, service animals

– Changing an employee’s supervisor (where employee retains current job but gets new supervisor)

Employees Entitled to Effective

Accommodation • Employer must provide an accommodation that meets the

employee’s needs and removes a workplace barrier

• But, employee is NOT entitled to accommodation of her choice

• If 2 or more accommodations would be effective, employer may choose between them– This means you can make counter-offers!

– Explain why you believe your alternative will effectively meet the individual’s limitation/problem

– Listen with open mind to any objections (individual may or may not be right that your suggestion has problems).

– If possible to provide the accommodation that was requested, that may be best in many situations.

• Critical that employer understand exact nature of problem to determine all possible, effective accommodations, then assess whether any/all possibilities constitute “undue hardship”

Best Practice: Consider Testing A Possible

Accommodation During a Trial Period • Good option where employer (or employee) has

doubts/concerns whether a proposed accommodation will work

• Do not use a trial period where clear an accommodation will or will not work (for example, do not need to test whether a sign language interpreter works)

• Accommodations where a trial period may be helpful: telework, modifying work schedules, use of emotional support dogs

• Generally, a trial period should last 1 to 6 weeks– Long enough to really test whether accommodation works or

not

– May need to tweak the accommodation, rather than revoking it, if minor issues/problems arise

– If clear that accommodation not working, may cut short a trial period

Undue Hardship

– Significant difficulty or expense

– Focus here is on resources and circumstances of

employer as a whole (not on individual units),

including impact on operations

– Undue hardship refers to denial of a specific

accommodation and not accommodation in

general (just because 1 accommodation causes

undue hardship doesn’t mean another one will)

– Consider financial difficulty as well as reasonable

accommodations that are extensive, substantial,

or disruptive

Best Practice: Not Done When You Grant

an Accommodation

– Check that it is working as intended

• Where accommodation may impact job performance,

attendance, or schedule want to check with supervisor

as well as employee to assess if accommodation

working

– If there is a problem, don’t necessarily revoke

accommodation or assume it can’t work

• May need tweaking or clarification or something else

– If after reasonable period of time accommodation

is not working, and no modifications possible/have

worked, then need to consider if any other

accommodation might work, including

reassignment

May Reassess Whether Accommodation Continuing to

Work as Intended Based on Reliable Information

– Regardless of whether you gave an accommodation for a

defined period of time, you may re-open interactive process

if reliable, objective information suggests it might not be

working or is no longer needed

– New supervisor learns of accommodation and doesn’t like it

– Not reliable, objective information to justify re-opening

interactive process

– Supervisor reports that employee has not followed

schedule given as a reasonable accommodation for 2

weeks: re-open interactive process (may be a good

explanation but need to find out)

• Do not immediately remove reasonable accommodation but gather

information to understand what is happening and make reasoned

decision based on objective information you learn

• May need to tweak accommodation, or provide a new one

Subsequent Requests After Providing or

Denying Reasonable Accommodation

• Employees may make new request after receiving accommodation or denial of previous request

• Already received accommodation: What is being requested and why?– Is new request because current accommodation not working as

intended, or is it to address a different limitation/issue (e.g., disability has gotten worse or job duties have changed, either resulting in a new problem requiring additional/different accommodations)

– If appropriate, may ask why other accommodation(s) insufficient to meet needs

• Denied accommodation: What is now being requested and why?– Same request or something different?

– How soon does current request follow denial of previous request? If employee essentially asking for same thing soon after denial issued, and can provide no additional information that might justify changing decision, then may quickly deny latest request

Sharon Rennert

202-663-4676; Sharon.Rennert@eeoc.gov

EEOC Enforcement Guidance on

Reasonable and Accommodation and

Undue Hardship

www.eeoc.gov/policy/docs/accommodation.

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