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The Docket

Ten Steps To Comply With The ADA's Interactive Process

JD Supra

Many employers would appreciate a clear road map when traveling the often winding roads of reasonable accommodations under the Americans with Disabilities Act (ADA). However, there are no rigid routes for the interactive process. After an employee requests an accommodation, the employer must engage in a good faith and flexible dialogue that addresses the employee’s specific medical limitation, request, job position, and work environment, among other factors. That said, employers can find guidance in at least ten hard and fast rules on the reasonable accommodation process:

1. An employer’s statutory duty to provide reasonable accommodations may begin before the employment relationship even forms. If an applicant requests reasonable accommodations to enable participation in the hiring or interview process, an employer must provide an accommodation unless doing so poses an undue hardship.
2. Generally, an employer’s duty to engage in the interactive process is triggered whenever it learns that an employee needs an accommodation. Courts give employees wide latitude in how they make this known. The employee need not make the request in writing, identify a specific accommodation, or use specific terms such as “disability,” “ADA,” or “reasonable accommodation.”
3. To start the interactive process, the employer should gather information from the employee, including the specific nature of the limitation, the specific difficulty or issue that the employee is experiencing at work, and what sort of accommodation the employee is seeking.
4. An employer may require that the employee provide documentation from the medical provider most familiar with the employee’s disability in order to confirm the employee’s specific limitations and need for accommodation.
5. Once the employer receives this medical documentation, it should ensure that any subsequent requests for updated records are reasonable and do not create an undue burden on the employee. For example, rather than requesting updates on a weekly basis, an employer may seek updated medical information at a time that coincides with an employee’s next scheduled appointment if the doctor’s assessment may change at that time.
6. Employers should keep all information collected from employees about their disabilities and need for accommodations confidential. All medical documents should be maintained in a standalone file separate from the employee’s personnel file.
7. The employer should also be collecting information on its end as it reviews the information submitted by the employee. For example, the employer should be reviewing the essential functions of the employee’s position and the employee’s ability to perform those functions, and determining which reasonable accommodations, if any, would enable the employee to perform his or her job. An employer need not provide an immediate response to an employee’s request for accommodation, but it must address the request promptly and keep the employee informed of any updates in the process to ensure there is open communication. Document all communication throughout the interactive process.
8. The goal of the interactive process should be to allow the employee to perform his or her existing job through a reasonable accommodation. However, even if this outcome is unfeasible, the interactive process is not over. Employers should then consider if they can accommodate the employee through reassignment to a different vacant position for which the employee is qualified or through a temporary leave of absence.
9. An employee is entitled to a reasonable and effective accommodation – not necessarily the accommodation of his or her choice.
10. If an employer is able to reasonably accommodate an employee, it is advisable to keep the interactive process open even after the accommodation is implemented. The employer should reach out to the employee to ensure that the accommodation was provided as discussed and that it is indeed effective in enabling the employee to perform his or her job.

Copyright © 2019 JD Supra, LL

U.S. Equal Employment Opportunity Commussion (EEOC)

ENFORCEMENT GUIDANCE: REASONABLE ACCOMMODATION AND UNDUE HARDSHIP UNDER THE AMERICANS WITH DISABILITIES ACT

Question

Mondaq News Alerts

In the recently issued decision in McDaniel v. Wilkie, the U.S. District Court for the Northern District of Ohio considered whether telecommuting constitutes a reasonable accommodation under the Americans with Disabilities Act (ADA). The short answer is that it can constitute a reasonable accommodation if it would enable an employee to satisfactorily perform the essential functions of his or her position and does not impose an undue burden on the employer.

In this case, an employer initially permitted an employee to telecommute four days per week. When the employee's productivity declined, the employer informed her that she must improve her productivity or her telecommuting privileges would be suspended. One week later, the employee requested full-time telecommuting as an accommodation for her alleged disability. The employer denied her request and revoked her telecommuting arrangement altogether. The employee resigned and claimed that her employer subjected her to a hostile work environment, failed to accommodate her alleged disability, and constructively discharged her.

With respect to the employee's failure to accommodate claim, the court held that the employee failed to establish that she was, in fact, "disabled" within the meaning of the ADA. The court noted that having a medical diagnosis—in this case, anxiety and depression—and alleging that these conditions were made worse while working for the employer is not enough to establish a disability. The employee must also establish that that he or she was substantially limited with respect to a major life activity, which the employee in this case failed to do.

In addition, the court found that the telecommuting arrangement that the employee requested was not a reasonable accommodation because the employee was not able to satisfactorily perform her duties within that accommodation request. Further, the court found that the employee failed to engage in the interactive process in good faith insofar as she refused to sign a medical release permitting the employer to request medical information regarding her alleged disabilities in order to evaluate other potential accommodations and then resigned while the process was ongoing.

The judge granted summary judgment in favor of the employer on the employee's hostile work environment, failure to accommodate, and constructive discharge claims.

This case provides employers faced with a request for a telecommuting arrangement as a disability accommodation with several takeaways. Most importantly, this decision reminds employers that when engaging in the interactive process with an employee who has requested a disability accommodation, they may want to consider whether telecommuting constitutes a reasonable accommodation that would enable the employee to perform the essential functions of his or her position. The decision also demonstrates that courts may recognize that factors, such as an employee's performance issues, can undermine the reasonableness of a telecommuting arrangement as an accommodation.

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Focus

Medical Marijuana, Employers, and Drug Policies

Lexology

Ohio, like most states, has a law (O.R.C. 3796 et. seq.) permitting the use of medical marijuana. Ohio’s medical marijuana program was set to be fully operational as of September 8, 2018; however, the program was plagued by a number of setbacks and is only now getting started. This is likely good news for employers, who should take this extra time to ensure they understand how the law stands to impact their workplace and employment practices.

Federal Law

Courts have dealt with the issue of whether medical marijuana use is protected by the Americans with Disabilities Act (ADA). In James v. City of Costa Mesa (2012), the Ninth Circuit found that although the medical marijuana users were gravely ill, the ADA provided no protections. The court concluded that the ADA does not apply to drugs, such as marijuana, that are banned under the Controlled Substance Act.

Ohio Law (O.R.C. § 3796.28)

Ohio employers are fortunate because the state’s medical marijuana law includes several employer-friendly provisions. Specifically, the law states that nothing in this chapter:

• Requires an employer to permit or accommodate an employee’s use, possession, or distribution of medical marijuana;
• Prohibits an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against a person because of that person’s use, possession, or distribution of medical marijuana;
• Prohibits an employer from establishing and enforcing a drug testing policy, drug-free workplace policy, or zero-tolerance drug policy.

Because of these explicit carve-outs, Ohio employers likely will not be adversely impacted by the medical marijuana law. Employers can continue to enforce their drug testing policies and discipline employees who use, distribute, or possess medical marijuana. Likewise, employers do not have to accommodate an employee’s use of medical marijuana.

Other States

While Ohio’s medical marijuana law contains employer-friendly provisions, other states are much more protective of employee use of medical marijuana, making it critical for employers to be aware of the specific laws in their state. Connecticut, for example, prohibits employers from refusing to hire a person or discharging, penalizing, or threatening an employee solely on the basis of such person’s status as a qualified medical marijuana user. This anti-discrimination language gives increased protections to employees who use medical marijuana.

In a recent Connecticut decision, Noffsinger v. SSC Niantic Operating Company, LLC (2018), a prospective employee was recommended medical marijuana by a physician to minimize the complications associated with post-traumatic stress disorder. Despite being aware of the prospective employee’s use of medical marijuana, the employer rescinded its job offer when the prospective employee tested positive for marijuana. The prospective employee filed suit alleging discrimination in violation of Connecticut’s medical marijuana law. The employer argued that it did not discriminate because of an exception to Connecticut’s law which permits discrimination “required by federal law or required to obtain federal funding.” However, the court held that no federal law required a zero-tolerance drug testing policy, and the employer discriminated by rescinding the job offer after the failed drug test.

A Massachusetts court also provided employees who use medical marijuana extensive protections. In Barbuto v. Advantage Sales and Marketing (2017), Cristina Barbuto accepted a job offer contingent upon her passing a drug test. Barbuto suffered from Crohn’s disease and was recommended medical marijuana to combat the side effects. Barbuto explained to her new employer that she would test positive for marijuana, but the supervisor said this should not be a problem. As expected, Barbuto failed the drug test and was terminated after her first day on the job. The employer argued that it was following federal law prohibiting the use of marijuana. The court rejected this argument and instead focused on Barbuto’s disability. Since Crohn’s disease is a disability under Massachusetts disability law, the employer had a duty to engage in the interactive process with Barbuto to determine if there was a reasonable accommodation to help her perform the job.

Bottom Line

Ohio’s medical marijuana law contains carve-outs so that employers can continue to enforce their drug testing policies. Still, it is important to keep in mind that other states have medical marijuana laws or disability laws that protect medical marijuana users. Recently, there has also been a growing national trend among employers to not test for marijuana use. Their employers cite the need to attract skilled workers and the disparities among state legalization as reasons for cutting back on marijuana testing.

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