By Arleen Shieh, RGS Human Resources Advisor
An employee tells you that he/she has restrictions or limitations with his/her work and seeks an accommodation. What do you do as a supervisor? Do you ignore it and hope that it goes away? Do you acknowledge it and let the employee do what he/she thinks needs to be done? Do you believe what the employee says and just follow his/her word? Do you have to do anything else? This is where the interactive process comes in.
The Americans with Disability Act (ADA) of 1990 and California Fair Employment Housing Act (FEHA) requires employers and employees to engage in an interactive process to arrive at a reasonable accommodation for the employee when he/she is not able to perform the essential duties of the job. This process must be an open, two-sided dialogue. The employee has the responsibility to communicate with the employer on the nature of his/her limitations and the accommodations needed. The employer has an obligation to have a system in place to communicate effectively with employees and to properly analyze reasonable accommodation requests. This process also extends to applicants with mental and physical disabilities.
As a supervisor, the first step you should take is to contact HR. Ask for advice and help on what to do with the situation. The agency’s HR professional is the best representative to manage the interactive process and all subsequent steps should be taken by the HR professional and not the supervisor. This person will ask the employee for documentation regarding restrictions. A note detailing the restrictions from a medical provider is the best document for this. Restrictions may be temporary or permanent and the medical provider will also determine this. If they are temporary, have the employee’s physician indicate how long the restrictions are in place. Identify the different tasks that the employee does and decide whether they are essential or marginal functions. A written description distinguishing the essential functions of the job along with the amount of time spent performing the function or task is always helpful and this analysis can be done by human resources with input from the employee’s supervisor. An HR professional’s next steps is to review any policies and procedures (and past practices) that the organization may have on the interactive process and disability accommodations. Finally there will be a discussion with the employee about the restrictions and limitations and a determination whether or how they affect the ability of the employee to perform his/her position’s essential functions.
During discussions, it is important to avoid anything that is related to the employee’s medical diagnosis or information on his/her medical history that might infringe on the employee’s privacy rights. Asking for explicit information about the employee’s condition is fraught with problems. Find out what kind of accommodation the employee is seeking. This will help determine if the accommodation is the best available, one that will effectively enable the employee to perform the essential functions of his/her position and will not pose undue hardship to the employer. Ascertain, if necessary, other potential accommodations available. This discussion is usually face to face meeting, but at times a follow up by other means of communication may be warranted. Document all communications including phone calls, emails, actions, etc. relating to the interactive process.
Communicate with the employee the reason for the selection of the accommodation and address any concerns he/she may have. Additional analysis or review may be needed to resolve these concerns. Send a letter to the employee confirming the accommodation provided. Remind him/her of the employer’s commitment to the interactive process and request immediate notification if additional or alternative accommodations are needed. Follow‑up with the employee to find out whether the accommodation implemented is effectively enabling him/her to perform the essential functions of the position. Make changes with the accommodations implemented, if necessary. Make sure to document any changes made.
Note that the interactive process is an on-going, fluid process. Once the accommodation is provided, it does not mean that the employer has done its part. A periodic check to find out if the accommodation continues to work is beneficial. If it no longer does, the evaluation and search continues for an alternative reasonable accommodation. The same goes with the employee, he/she needs to notify his/her supervisor if the accommodation is no longer allowing him/her to perform the essential duties of his/her job.
Finally, no accommodation should ever be unintentionally made permanent. If the health care provider indicates that the employee’s condition is permanent, at least once each year ask for a written verification of such. If the treating health care provider indicates the condition is temporary, always assess the accommodation after the period indicated. Do not allow the accommodation to continue without a formal review and approval process.
References:
15 Steps to Help Employers Move through the Interactive, Accommodation Process by Julie Brook, Esq. CEBblog™.
Procedure 81: Reasonable Accommodation and the Interactive Process, Human Resources at University of California, Berkeley.
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