The Americans with Disabilities Act of 1990 (“ADA”) protects the disabled in the workplace by prohibiting affected employers from, among other things, “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an employee, unless such [employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such [employer].” 42 U.S.C. § 12112(b)(5)(A).
The Americans With Disabilities Act (“ADA”) requires employers to reasonably accommodate the disabilities of their employees. In Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th Cir. 2000), the Ninth Circuit Court of Appeals (whose decisions govern the Western states) addressed the interactive process in depth, noting that “the interactive process is a mandatory rather than a permissive obligation on the part of employers under the ADA and . . . this obligation is triggered by an employee or an employee’s representative giving notice of the employee’s disability and the desire for an accommodation.” Once an employee requests an accommodation for their disability in the workplace, the employer has a legal duty and obligation to engage in an “interactive process” to “identify the precise limitations resulting from the disability and potential accommodations that could overcome those limitations.” Melange v. City of Ctr. Line, 482 F. App’x 81, 84–85 (6th Cir. 2012).This means that the individual requesting the accommodation and the employer must communicate with each other about the request, the precise nature of the problem that is generating the request, how a disability is prompting a need for an accommodation, and alternative accommodations that may be effective in meeting an individual’s needs.
The employer must accommodate the limitations resulting from that disability to the extent an accommodation is “reasonable” and does not unduly burden the employer. The question of what constitutes a “reasonable” accommodation has been the subject of much litigation. The ADA states that a reasonable accommodation “may include job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, and other similar accommodations for individuals with disabilities.” ADA § 12111(9)(B) Across the federal circuits, there is a general consensus that the Plaintiff has the obligation of demonstrating that there was an available and “reasonable accommodation” and that they could perform the essential job functions with that accommodation. Once the plaintiff has established the existence of reasonable accommodation that would enable him or her to perform the essential functions of an available job, the burden switches to the defendant to show that this accommodation would constitute an undue hardship. See 42 U.S.C. § 12112(b)(5)(A).
The employer and employee should at a minimum perform the following:
1. Preserve and memorialize the employee’s request for accommodation and provide a copy to the employee to demonstrate good faith in responding to the request.
2. Determine whether there in facts exists a disability as defined by the ADA or ADAAA and if the employee is a qualified individual.
To be a qualified individual under the ADA, one must:
• Have the skills, experience, education and other job-related requirements necessary for the position.
• Be able to perform the essential functions of the job with or without a reasonable accommodation.
Definition of Disability Part of the challenge of understanding ADA accommodation obligations is understanding the definition of disability.
There are three definitions recognized under the ADA, which define a disability as any of the following:
• A physical or mental impairment that substantially limits one or more major life activities of an individual (that is, an actual disability). • A record of this kind of impairment.
• Being regarded as having such an impairment.
3. Medical records pertaining to the impairment and any prior determination of disability and impairment rating be exchanged and reviewed. Employee may have to participate in a medical examination facilitated by the employer.
If you are disabled and request an accommodation, provide it in writing and document each step of the interactive process as this will be essential proof at trial for which you have the burden. Be reasonable in the accommodations you request.
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