A recent 4th U.S. Circuit Court of Appeals opinion, Dieng v. Orkin LLC, provides a timely reminder for HR professionals of several key principles under the Americans with Disabilities Act.
Jessica Thaller-Moran
Permission granted by Brooks Pierce
In Dieng, an employee suffered a workplace injury and went on a long-term leave of absence without pay. During that time, the employee said he repeatedly informed the company that he wanted to return to work, albeit in a different, lighter-duty position. Given the nature of his medical issues, there was no duration of leave that would have enabled him to again perform the physical duties of his prior job.
Despite the employee’s outreach and several open positions for which he may have been qualified, the employer allegedly failed to meaningfully engage with him to assess his ability to return to work. Instead, the company provided vague responses or, more egregiously, no response at all — nor did it meaningfully vet the employee’s qualifications for the open positions that may have better aligned with his abilities, according to court documents. After more than a year of unpaid leave, the employee ultimately resigned.
Lauren Hoffman
Permission granted by Brooks Pierce
The 4th U.S. Circuit Court of Appeals identified several issues with the employer’s approach to the interactive process. Among other things, the court’s opinion included a reminder that an accommodation must be effective to be reasonable. In this case, leaving an employee on indefinite leave when the employee was not expected to recover to the point of returning to a prior position was not reasonable. Perhaps more importantly, the company’s alleged failure to meaningfully engage with the employee’s requests for alternative positions meant that it had not fulfilled its duties under the ADA “interactive process.”
This case invites a revisit to ADA fundamentals and serves as a reminder that meeting the basic requirements of the interactive process not only helps to mitigate the risk of liability but can be a powerful employee relations tool that strengthens productivity and the workplace as a whole.
What does the ADA require of employers?
The ADA, which prohibits discrimination on the basis of disability, applies to employers with 15 or more employees. It is designed to protect both employees and applicants.
The ADA also includes accommodation requirements. More specifically, it requires employers to provide reasonable accommodations to qualified individuals with disabilities so employees can perform the essential functions of their jobs. To that end, when notified of an employee’s disability and need for an accommodation, employers must engage in the interactive process.
The interactive process is an informal dialogue between employer and employee to identify possible accommodations that enable the employee to perform the essential functions of their job without placing an undue burden on the employer. At its core, the goal of the interactive process is for employers and employees to work together to find a mutually agreeable solution where the employee can perform their job while meeting the employer’s operational needs.
What does ‘interactive’ mean?
An employer’s obligations begin when an employee informs the employer they are having difficulty performing some part of their job because of a medical condition. The ADA does not require the employee to use magic words to place the employer on notice. Accordingly, managers should be educated on basic ADA principles to recognize when they should involve human resources and begin the interactive process.
It is important to remember that the interactive process requires the employer to actually interact and engage with the employee: gather information, listen and document what is discussed. While an employer is not required to automatically grant the accommodation requested by the employee, a successful interactive process involves an employer open to discussing the employee’s requested accommodation, as well as the willingness to explore potential alternatives that will meet the needs of both parties and enable the employee to perform the essential functions of their job. And while an employer is not required to provide an accommodation that would constitute an “undue hardship” on the company, that “hardship” must be more than inconvenience, rote application of workplace policies, reasonable cost or anticipated envy from other employees.
Beyond simply interacting with the employee, the employer’s obligations may also require meaningful engagement with its own operations to identify available accommodations. In Dieng, for example, it was alleged that the employer never fully explored whether the employee was qualified for an open lighter-duty position. While accommodations will largely be determined by an employee’s individualized needs and job functions, some common accommodation examples also include:
- Modifications to facilities to make them more readily accessible.
- Acquisition or modification of equipment or devices.
- Limited or temporary job restructuring.
- Schedule changes.
- Permission to use accrued paid leave.
- Additional unpaid leave.
- A designated parking space.
What determines a meaningful ‘process?’
The term “process” may sound almost mechanical. In reality, however, the interactive process is an interpersonal interaction, and it is important to remember that the process often involves disclosure of sensitive medical information. Approaching the conversation in a manner that seems collaborative and not punitive or skeptical of an employee’s “true intent” will likely lead to the most productive dialogue.
To better understand the nature of the employee’s needs and how the proposed accommodation may address them, it may be necessary for the employer to gather additional information, including employee medical records. In these cases, employers should gather only the amount of information necessary to meaningfully engage in the process; the ADA does not give employers broad discretion to request an employee’s entire medical file. Similarly, information shared during this process should be kept on a strict need-to-know basis. Most workplace adjustments can be made without sharing the nature of an employee’s disability or medical history beyond a limited circle in company management.
The interactive process may also be ongoing. Accommodations chosen early in the interactive process may be revisited and subject to trial periods and regular check-ins as needed to ensure that the accommodation remains effective. For instance, if management in Dieng had taken this step, they would have learned that the accommodation of employee leave was no longer effective. As the Dieng court highlighted, clinging to an ineffective accommodation is “no accommodation at all.” The process must identify an accommodation that allows the employee to perform the essential functions of their job.
Employers can also improve the interactive process by ensuring that management is trained on ADA basics and knows when to engage human resources. A well-intentioned or overly busy supervisor may overlook opportunities for the company to provide an effective response to an employee in need of support. Similarly, supervisors should be trained to keep performance feedback separate from medical information to avoid appearing to conflate an employee’s ADA-protected condition with legitimate performance management.
In short, the 4th Circuit’s Dieng opinion is a reminder that HR professionals who do their homework on the basics of the ADA interactive process can set their employers and their employees up for success.