The interactive process is key to compliance with the Americans with Disabilities Act. “Interactive” is been defined as allowing a two-way flow of information between persons or responding to a person’s input or being mutually or reciprocally active. In other words, the City must have a conversation with a disabled employee about a reasonable accommodation or the City may be in violation of the ADA.
Communication of this nature can make many supervisors and seasoned HR professionals anxious and very uncomfortable to confront employees about their health and ability to perform the essential functions of their job.
There is no right or wrong way to interact with an employee in need of a reasonable accommodation. In fact, this conversation will vary depending on the facts and circumstances of each employee and their respective job. It is imperative that both the employee and the City engage in a conversation about things like employee’s physical or mental limitations, essential job functions, physician recommendations, estimated length of time to recover, other duties and/or qualifications that the employee possesses, potential for transitional work, etc. The City should consider all the input and recommended accommodations offered by the employee, which presently, or in the near future, would enable the employee to perform the essential functions of the job. See note 1, below.
The City should use caution when requesting information from an employee. Do not ask for too much information. For instance, if the disability is obvious, there may not be a need to ask for medical documentation of that disability. However, if the disability or need for accommodation are not obvious, then the City can request medical documentation to help determine whether the employee has a disability and needs the requested accommodation.
The interactive process is typically not a one-and-done process! It is wise to not make any decisions during the initial meeting, but to use the initial meeting to communicate how the interactive process works to the employee. The City and employee will likely need to think about the impact of potential accommodations on the City and the employee’s health and well-being. In many instances this meeting will be followed by discussion with supervisors, physicians and other interested parties to determine if any of the potential accommodations are viable for both the City and the employee.
The City will ultimately determine whether a reasonable accommodation will create an undue hardship for the City. The EEOC defines “undue hardship” as significant difficulty or expense and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation. Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business. See note 2, below.
The City must be able to show evidence, like special or case specific circumstances, that demonstrate an undue hardship. See note 3, below. For example, an employee requests a parking spot directly in front of City Hall because he cannot walk two blocks from the city employee parking lot. Are there parking spots in front of City Hall? Is the one parking spot in front of City Hall for utility customers or for disabled parking? If the City has multiple parking spots in front of City Hall that are not routinely used by citizen’s then this may be a reasonable accommodation. However, if there is only one spot and it is reserved for utility bill customers then it may be an undue hardship on the City to designate that spot for an employee.
One very common request for reasonable accommodation is a request for extended leave. If you have an employee who requests extended leave as a reasonable accommodation it must be given consideration. This does not mean that the City has to retain an employee with a disability on unpaid leave indefinitely or for an excessive amount of time. In fact, the courts disfavor a request for an indefinite leave of absence because it is difficult to determine what is “reasonable” when an employee can’t give a definite date of return. See note 4, below. The expected duration of the leave (i.e. 1-2 week, 12 weeks, 12 months, etc.) may likely dictate whether the City can accommodate the employee or not.
Other factors to consider when determining whether the City can accommodate the extended leave, are the number of employees and essential functions of the job. For example, in a City with only three employees it may not be feasible to allow one employee a 6-month leave of absence because that would create an undue burden on the City.
If you have questions about the application of the ADA in your city, feel free to reach out to an OMAG attorney. There are other valuable resources, like, the United States Department of Labor (USDOL) (https://www.dol.gov/general/topic/disability/ada); the Equal Employment Opportunity Commission (EEOC) (https://www.eeoc.gov/disability-discrimination); or the Job Accommodation Network (JAN) (www.askjan.org).
Notes from Post:
Note 1: Aubrey v. Koppes, No. 19-1153, 2020 WL 5583649, at *7 (10th Cir. Sept. 18, 2020) citing Lincoln v. BNSF Ry., 900 F.3d 1166, 1205 (10th Cir. 2018)
Note 2: 42 U.S.C.A. § 12111(10)
Note 3: Aubrey v. Koppes, No. 19-1153, 2020 WL 5583649, *9 (10th Cir. Sept. 18, 2020)
Note 4: Aubrey v. Koppes, No. 19-1153, 2020 WL 5583649, at *10 (10th Cir. Sept. 18, 2020), citing Punt v. Kelly Servs., 862 F.3d 1040, 1051 (10th Cir. 2017) (“Without an expected duration of an impairment, an employer cannot determine whether an employee will be able to perform the essential functions of the job in the near future and therefore whether the leave request is a ‘reasonable’ accommodation.”)
DISCLAIMER: OMAG attorneys have sought to keep updating this webpage with the most up-to-date information possible. OMAG offers this guidance to help your municipality make informed decisions. You should always consult with your City Attorney before taking any actions based on this guidance. If you have questions or concerns about the information contained in these articles, please email one of the attorneys in the OMAG Legal Department (see https://www.omag.org/legal-services for contact information).
