Abby, a reliable and valuable employee for five years, was in a car accident and is in a wheelchair for a month as she recovers.
John, who has only been with the company for six months, has been at least 45 minutes late every day for the past two weeks. He seems exhausted and haggard, and his behavior and tardiness are disrupting the workflow.
On the surface, these two examples might seem like night and day. From the perspective of the Americans with Disabilities Act (ADA), however, employers would be wise to approach both in exactly the same way.
The ADA requires you to engage in an interactive process with any employee who may require an accommodation in order to perform the essential functions of his or her job because of a qualifying disability.
What is the interactive process?
The interactive process is a conversation between an employer and an employee to determine if the employee requires a reasonable accommodation to perform the essential functions of their job and if so, what the accommodation(s) may be.
This process is initiated either by:
- The employee’s written or verbal request for assistance, or
- The employer’s inquiry into workplace behaviors that may potentially be the result of a medical condition covered by the ADA
In this conversation, the employee may request an accommodation or offer suggestions for accommodations that will allow them to perform essential job functions. It’s important to note, though, that if they decline assistance and later ask for a reasonable accommodation, the employer is still required to engage in the interactive process at that time.
The interactive process is a balancing act:
- You may not ask for specifics regarding any medical issues the employee may be facing.
- It isn’t the employer’s role to define whether the employee’s challenge meets the requirements of a qualifying disability.
As an employer, you’re probably not a health care provider, and even if your organization is a health practice, you’re likely not the employee’s health care provider.
A good way to broach this topic, and begin the interactive process, is to ask a simple question: “Is there something we can do to help you?”
Abby will likely require safe access to your building, and she may need adjustments made to her workstation. Depending on the nature of her position, you may need to review her job requirements to determine how you may best assist her during this time.
For John, asking him, “Is there something we can do to help you?” opens the door so he can inform you if he is facing medical issues that might not be immediately apparent.
For questions, clarifications and updates on what is and isn’t covered by this legislation, visit the ADA website.
The interactive process: A two-way street
The interactive process only works if the employee engages as well. In this example, John may tell you that he’s grappling with a health care issue, or he may simply say that, yes, he needs an accommodation.
If he confirms that he needs a reasonable accommodation, you can:
- Refer him to your Employee Assistance Program (EAP), if appropriate.
- Offer to adjust his schedule, if that’s possible based on his essential functions.
- Ask him if he has any suggestions regarding how you may help
If a reasonable accommodation is not obvious, or if John has a difficult time identifying what may be of aid to him:
- You may ask that he obtain information from his health care provider specifying only what he can and can’t do as it relates to his job.
- This can be a sensitive issue. Be very clear that you’re not seeking any information about his medical condition.
- It’s a best practice in these occasions to provide a letter for him to take to his health care provider stating that you seek only information about what modifications may be made to assist him in performing the essential functions of the job. Enclose a copy of the job description so the employee may ask their health care provider to review it.
Understand that employees like John may be hesitant to initiate this conversation, as it might be embarrassing, or because they might worry that speaking to you could jeopardize their job security.
It’s also entirely possible John might not know his particular problem – such as depression or other mental illnesses – are provided protection under the ADA. That’s why the interactive process requires employers to engage with the employee, even if the employer needs to initiate it.
What happens if John responds to your question with the following?
“No, everything is fine, I’ve just haven’t been starting my morning early enough.”
If he tells you he doesn’t need assistance, you should continue to treat him as you do any other employee in a similar case. Document the encounter and, if appropriate, take whatever disciplinary steps your company allows, including issuing a verbal or written warning about getting to work on time.
When the medical issue isn’t obvious (unlike Abby’s being in a wheelchair), it’s incumbent on the employee to hold up their end of the interactive process and help the employer understand what’s going on.
The power of perception
When it comes to protections under the ADA, perception is everything.
For example, let’s say your employee is doing their job well and meeting all expectations, but they’re noticeably limping every day.
They may have a disability, or they may not.
If it’s perceived that they might, that perception may impose ADA protections on the employee that wouldn’t otherwise exist.
This is one reason it’s important to treat all employees equally, and not to make assumptions about an employee’s ability to do a job or the reasons behind any requests or acceptance of assistance.
Not a one-and-done situation
If you do have an employee who requests a reasonable accommodation in line with the ADA:
- Schedule time to check back in on a regular basis.
- Ensure the changes you’ve made continue to provide the appropriate solution.
- Make adjustments as necessary.
Of course, this isn’t just about accommodations, it’s also about performance management. As the employer, you should continue to maintain your standards and expectations. If your employee isn’t meeting those expectations for reasons separate from an ADA-qualifying issue, you should treat them as you would any other employee.
Job descriptions: Essential and marginal functions
One situation many employers encounter is addressing what modifications to provide an employee who requests an accommodation. A critical tool in this process is a properly constructed job description.
This means a job description that accurately reflects the tasks and responsibilities required of the employee to do the whole job.
Those tasks and responsibilities should be separated between essential and marginal functions:
- Essential functions are duties that must be done to fulfill the purpose of the job.
- Marginal functions are duties that may be important to the organization, but if you were to alter them, or remove them completely, the primary purpose of the job does not change.
Remember that a job description is about a position, not the person performing it.
For example, if you hire an employee as a driver for your organization. The primary purpose for this role is to deliver your product from Point A to Point B. If they don’t spend all their time driving, or doing work associated with driving tasks, you may assign filler work, such as sweeping the warehouse during downtime.
If the employee hurts his or her back and tells you that sweeping exacerbates the injury, the function of sweeping could be removed from the job responsibilities as a reasonable accommodation. Sweeping is likely a marginal function, since removing it likely wouldn’t impact the primary function of their job – delivering product from Point A to Point B.
Any job responsibility that is not essential, or critical to the purpose of the job, is considered marginal. When engaging in the interactive process, any reasonable accommodation should focus on how the employee can perform the essential functions of their job.
A reasonable accommodation
When working through the interactive process with your employee, you’re required to make a reasonable accommodation, if one exists. The idea of what is reasonable, however, is not black and white.
What is considered reasonable is based on:
- Your company size
- The specific position in question
- The organization’s financial resources
- Other situational factors
The ADA doesn’t require an at-all-costs accommodation that will create significant financial hardship for the company or result in significant disruption to the work environment. By the same token, a modification that is expensive, or that is inconvenient to the workplace, may still be considered reasonable.
Communicate with your employees. It’s OK to be creative in finding a fair and effective solution. Your employees understand you still have a business to run and that your goals haven’t changed. You’re just altering the way they help pursue those goals.
Not knowing the laws that govern your business can be a costly mistake. To learn more about the ADA, the interactive process and other key employment regulations, download and read our complimentary e-book: Employment law: Are you putting your business at risk?