My colleague Gary Starr sits next to my office and sometimes we bounce ideas off each other. One of the things we were talking about recently was a new case that discussed an employer’s obligations to enter into the interactive process.
This often comes up in ADA cases where the employee may need a reasonable accommodation. As we discuss in this joint post below, there are no magic words needed — and sometimes no words needed at all.
Both federal law (ADA) and state law (CFEPA) require employees and management to meet and discuss what might be a reasonable accommodation when an employee with a disability seeks an accommodation.
This interactive process was envisioned as a way to work collaboratively to find a reasonable accommodation. Certainly when an employee asks for an accommodation, an employer must engage in the process.
But here are a few questions to ponder:
- What should happen when the employee does not quite use the right words to start the process?
- Can the employer be liable for failing to engage in the interactive process after terminating an employee who has not been accommodated?
- While there are no magic words that must be uttered to start the interactive process, what will trigger the obligation?
A recent federal appeals court case (Kowitz v. Trinity Health) discussed this situation, where the employer apparently ignored the signs requiring it to explore possible accommodations. As a result, the employee will get her day in court.
The basic facts:
- A respiratory therapist was diagnosed with a degenerative disease.
- She requested and was granted time off for surgery under the Family and Medical Leave Act (FMLA). After she exhausted her FMLA leave, she returned to work with restrictions.
- During her leave, management reminded the department’s employees that they needed to submit proof of their certification in CPR, an essential job function. Employees who needed to get recertified were required to say when they were going to take the course and the written and physical tests.
- Having discussed the matter with her doctor, the therapist left a voice mail message for her supervisor that she would take the course and the written exam, but needed to complete 4 more months of physical therapy before she could do the physical portion of the test.
- The next day, the respiratory therapist was terminated because she was unable to perform CPR.
She sued, claiming that her employer did not engage in the interactive process. The court found that while the therapist did not expressly ask for an accommodation, she provided sufficient information to start discussions.
The court pointed out that the employer was aware of the disability. It approved the FMLA leave. It received the Return to Work form from her doctor with work restrictions. And there was evidence that the employee had told her supervisor about her problems completing the CPR certification and she told her supervisor about her doctor appointments and her continuing pain.
What’s the Takeaway?
This decision warns employers that if you know about an employee’s medical limitations, that knowledge may be sufficient to trigger the informal interactive process.
While it is not clear whether other courts will adopt this liberal approach, which is better in the long run: Sitting down with the employee or litigating?
It is important to remember that not all requests for an accommodation are reasonable. The expense of a requested accommodation may not be reasonable; what the employer offers may be reasonable, even if rejected by the employee; and there may not be a solution to the situation.
But engaging in the process makes much more sense than trying to convince a judge or jury that you were too busy to meet for an hour or so and were unwilling to listen to possible ways to have the employee be productive and contribute to the company.