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november 2006

Salem business Journal

Page 1

What is the AdA “interactive Process”

The Americans with Disabilities Act (“ADA”) requires most employers to offer accommodations to disabled employees who are otherwise qualified to perform their job. Although the ADA only applies to employers with 15 or more employees on the payroll, Oregon law extends that protection to employers with six or more employees.

an ADA discrimination claim.

In contrast,

an employer who can show extensive efforts to work with the employee and consider/ implement possible accommodations will have a strong case that most plaintiff

attorneys will find unattractive.

STeP 1: eMPlOYee

MeeT

WiTh

The

Analyzing

disability

discrimination

issues

requires

a

step-by-step

approach.

First,

the

employer

must

evaluate

whether

sufficiently

limiting to

be considered

a

“disability.”

Once that

determination

is

the employee has an impairment that

is

made, the next step is to evaluate whether the employee, in light of the disability, is qualified to perform the essential functions of the job. This may involve an analysis of potential accommodations that the employer

can

make

to

help

the

employee

achieve

the

The employer and employee have a duty to work together in good faith to help determine whether an accommodation is necessary. If an employee does not cooperate with the employer’s efforts, this can relieve the employer of further duty to accommodate. Key inquiries include: What is your concern? What are the barriers to you being successful in this job? And most importantly . . . How can I help you?

STeP 2 – deCide WheTher There iS A QUiCk And eASY FiX

quality and position.

quantity

expectations

of

the

The key to successfully handling disability issues is to understand the ADA “interactive process.” Through the interactive process, the employer and employee work together to verify whether the employee has a “disability” for purposes of the ADA, identify precisely how the employee is limited, and identify potential reasonable accommodations that will allow the employee to do his or her job.

If

the

need

for

the

requested

accommodation is obvious or is cheap and easy. . . just provide it. There is no penalty for offering to accommodate an employee, even if the employee really doesn’t have protection under the ADA. Let the employee know that you have not decided whether the employee has a disability or not

  • you are simply providing the requested

accommodation that it will help

at this time in the hope the employee. Document

In the event of a lawsuit, employers who bypass or shortcut the interactive process will face significant challenges in defending

the accommodation provided in the employee’s personnel file and on a running

spreadsheet

of

accommodations

offered

to

all

employees

in

the

company.

If

it

is

an

503-932-9354

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F l o r i s t U n i q u e D e s i g n F r e s h D e l i v e r y A b b e y R o a d W i l d f l o w e r s

Employment Law:

ongoing accommodation, make sure the employee knows that you may reevaluate the accommodation if circumstances or the company’s needs change in the future.

If the need for the accommodation is not “cheap and easy” and you would rather not provide it, you will need to continue on with the interactive process. When is an accommodation not “cheap and easy”?

  • --

    When the accommodation requires

purchase of an expensive item, or an inexpensive item that everyone will want, or forces you to make changes to work rules that will harm morale or otherwise not serve the company’s best interests.

STeP 3 – OBTAin inPUT FrOM The eMPlOYee’S PhYSiCiAn

Before

seeking

information

from

the

employee’s physician, the request must be “job related and consistent with business necessity.” Your request must be narrowly tailored to substantiating that the employee has an ADA qualifying disability and the particular accommodations that may allow the employee to perform his or her job. Don’t ask for the employee’s entire medical file or ask questions that go outside the request for an accommodation. Avoid verbal communication with the treating physician. It is much safer to communicate by submitting a questionnaire to the doctor. If the doctor provides a cryptic or incomplete response, let the employee know that the or

she the

has a responsibility to make sure doctor provides this information,

that and

keep returning the form for follow-up you get a satisfactory response.

until

STeP 4 – reSeArCh The diSABiliTY & ACCOMMOdATiOnS On-line & elSeWhere

Just talking to the employee and the employee’s doctor is not enough. It is best to become very knowledgeable about the employee’s particular medical condition

and the accommodations address the employee’s issue.

that could The Internet

has an amazing available about

amount of information particular impairments.

Doing

a

Google

search

on

the

name

of

the

Randy Sutton

impairment is a great place to start. As you do research, print copies of the pages you review. You should also check the Job Accommodation Network (JAN) website, which makes suggestions about how to accommodate a large variety of disabilities. The JAN website is located at: http://www. jan.wvu.edu.

STeP 5 – TAlk TO The eMPlOYee SOMe MOre

Throughout the interactive process, stay in touch with the employee. You want the employee to understand the considerable efforts you have taken to address this issue.

Get

the

employee’s

feedback.

Discuss

whether there are there options that you should

other avenues or consider? If so,

pursue those avenues.

If the employee

has also run out of ideas and cannot come up with an accommodation that would be effective, document this as well.

STeP 6 – MAke A deCiSiOn Communicate to the employee in writing what accommodation the company feels is reasonable and effective. If the company and the employee cannot come up with a reasonable accommodation, the employee should be notified. In this instance, I strongly recommend seeking qualified employment counsel, as this decision will be subject to considerable second-guessing if the matter is ever litigated.

As with most employment issues, how a problem is addressed makes all the difference. In handling employee disability issues, the ADA interactive process is essential.

Randy Sutton is a partner with the SAALFELD GRIGGS PC law firm in Salem Oregon. 250 Church Street SE, Salem Oregon 97301. This article should not be considered legal advice. Randy focuses his practice on representing management in employment and business litigation. 503-399-1070, rsutton@sglaw.com, www.sglaw.com.

(503) 540-1973

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