The United States Court of Appeals for the Fifth District recently reiterated the importance of engaging in an interactive process with employees seeking shelter for the disabled. This case serves as a helpful reminder, especially in the post-COVID-19 home office era, that it’s best for everyone to have meaningful, collaborative conversations with your employees who are looking for accommodation.
Background on reasonable accommodation and the interactive process
Under the Americans with Disabilities Act, employees with qualifying disabilities are eligible for reasonable accommodation. An employee is generally considered to be disabled if he or she has a physical or mental impairment that significantly restricts one or more important life activities while active (or if such a disability is present or known). An employee can apply for accommodation that enables him to carry out the job. However, as an employer, all you need to do is make reasonable accommodations; For example, you do not need to take any precautions that would negate an essential professional function or put too much strain on your business model.
What is “reasonable” depends entirely on your company, the tasks and responsibilities of the employee and all the facts of the situation. To determine what is appropriate, ADA encourages you to participate in the “interactive process” where you and your co-worker discuss possible arrangements, explain what will or will not work, and come to the ultimate goal of what arrangements “Appropriate”. ”This may involve the employee’s medical provider or a third party such as the Job Accommodation Network (JAN) to assess the situation.
Thompson v. Microsoft Corporation
The Fifth Circuit recently pointed out the importance of the interactive process and eventually concluded that Microsoft had adequately discussed possible arrangements with its employees. John Thompson was an executive at Microsoft. After the company raised concerns about his job performance, he asked for about 10 shelters for his Autism Spectrum Disorder. The accommodations ranged from a noise-canceling headset to special software that would help him with his time management and organization, to an assistant who would help him with administrative tasks.
Microsoft considered some of Thompsons’ requests to be appropriate, such as the headset, software, training for its managers to manage employees with Autism Spectrum Disorder, and a specialist job coach. However, she found others unreasonable, such as the provision of an administrative assistant. Microsoft believed the administrative assistant Thompson wanted to help translate his oral information into writing would hinder his relationship with the customer, a key business element of his position. Microsoft believed that “the work product would be unacceptably watered down if filtered by someone with little or no experience in basic role requirements.” Additionally, Microsoft believed that introducing an assistant would slow down customer response time, which was important for the role. Eventually, Microsoft determined that this request would require hiring an assistant to handle basic email and administrative tasks. As a result, Microsoft deemed this request (and others for similar reasons) to be inappropriate.
Importantly, Microsoft discussed these concerns with Thompson. From mid-May to July, Microsoft discussed the proposed arrangements with Thompson, explained why they considered them appropriate or unreasonable, and encouraged him to suggest alternative arrangements. Nonetheless, Thompson insisted on what Microsoft considered to be inadequate precautions and when the parties could not agree he was placed on reallocation proceedings. He filed a lawsuit claiming, among other things, that his disability was not taken into account under the ADA.
After considering the validity of Microsoft’s conclusions as to the adequacy of the requested arrangements, the court spent considerable time on the interactive process. The court described the interactive process as “a flexible, interactive discussion to determine reasonable accommodation” and strongly stated that “an employer’s unwillingness to engage in an interactive process in good faith is a violation of the ADA”. In particular, the court reminded employers that suitable accommodation need not be preferred; Instead, “it is up to the employer to choose the cheaper or simpler accommodation for him”, as long as this is effective and reasonable.
The court then ruled that Microsoft duly participated in the interactive trial with Thompson because it:
Worked with Thompson for several months,
Declared arrangements that it deemed inappropriate
Thompson asked to respond with alternative accommodation, and
Offered to consult directly with Thompsons doctors.
In addition, the court found that Microsoft’s inclusion of Thompson in the job reallocation program was a continuation of the interactive process, not its termination, as the job reallocation is one of the reasonable accommodations considered by the ADA. For example, the court ruled that it was justified to ask Thompson to reassign his position because of his objections because Microsoft had the “ultimate discretion” to choose between effective arrangements.
Having a truly interactive process is one of the best ways for an employer to defend themselves against an ADA non-compliance lawsuit. In the wake of COVID-19, we are seeing an increase in claims from employees that the employee required certain precautions, e.g. B. continue to work from home and that rejecting this application is against the ADA. Interacting with your employees is not only important, it is also required by law.
First, establish a clear path for an employee to request reasonable accommodation and make sure your managers understand their obligations in this area.
Second, unless you can easily make reasonable arrangements, get help. You may have people from HR to deal with this, or you may need outside help (like your lawyer).
Third, once the process has started, make sure it is interactive. It can take more than one conversation and you should document it.
If you are unable to provide the accommodation requested, remember that you must consider moving the employee to a vacant position where you can make reasonable accommodation. If there is no vacancy, you don’t need to create a job, but consider whether there will be vacancies soon. The EEOC and some courts have ruled that a certain amount of leave can also be a reasonable accommodation, so don’t dismiss it out of hand.
By engaging in a robust interactive process, explaining to your reps why certain precautions are or are not appropriate, and offering alternatives like Microsoft did, you are in a much better position to defend an ADA claim.
© 2021 Bradley Arant Boult Cummings LLPNational Law Review, Volume XI, Number 195