By Patti Perez, Ogletree Deakins
It’s true in other areas of employment law as well, but in the world of disability discrimination law, there are numerous phrases that have taken on special meaning and become true terms of art.
Even those who are well-versed in other areas of employment law and HR often find it difficult to understand the meaning of some of these commonly-used words and phrases. Supervisors and HR personnel who do not understand the meaning of these key phrases may end up failing to comply with the strict rules and regulations of state and federal disability laws. Here is a quick and easy reference guide to help you understand the jargon and achieve compliance:
I. Interactive Process
Employers and employees alike often fail to fully understand the meaning of the term “interactive process.” The technical definition of the interactive process is a timely, good faith communication between an employer and an employee to explore whether a disabled employee needs a reasonable accommodation to allow the employee to effectively perform the essential functions of the job and, if so, to explore how the employer can reasonably accommodate the employee.
What are the hallmarks of a successful interactive process? Here is a short list:
- The process should be, perhaps obviously, interactive. This means that both sides must participate in the process. In addition, both sides must participate with each other. Having a robust and meaningful conversation among numerous internal managers without the employee’s involvement is not interactive. Interactive also means that the process must be open and transparent, as it is impossible to truly interact if one or both sides is withholding important information.
- The process also needs to be mutual. One side does not have the right to break down the communication process. When interacting with employees, do not give up easily. Share information, brainstorm with internal employees, and share your ideas with the employee. Be honest and precise about the information you need from the employee in order to allow you to do your job. In short, do your part to communicate clearly and honestly and always keep the lines of communication open.
- Even if you have gone through this process numerous times, approach the process with a problem-solving, reasonable, and good-faith approach. Even if an individual has a condition that you’ve seen before, he or she may have restrictions or job requirements that are different. Be creative and approach each accommodation request and analysis with an open and positive mind.
- Keep in mind that, at its core, the interactive process requires employers and employees to comply not only with the letter of the law, but also with the spirit of the law.
II. Essential Job Functions
Essential job functions are the fundamental job duties of a position. A duty may be considered “essential” for several reasons:
The reason the position exists is to perform that function. For example, a receptionist position exists so the company can have someone greet guests and answer phones, among other duties.
There are a limited number of employees available among whom the performance of that job function can be distributed.
The function may be highly specialized and the employee might have been hired because of his or her expertise or ability to perform a particular function.
An employer can use numerous tools to determine whether a job function is essential, including its good-faith judgment, the amount of time the employee is expected to spend performing that task, the details contained in a current and accurate job description, and the importance given to that task in performance evaluations.
III. Individual Assessment
A hallmark of disability law is that each and every accommodation request is unique and must be individually assessed. The core issue here is that although companies are expected to have a fair and detailed process in place to analyze accommodation requests, each factual scenario presents unique circumstances that must be viewed independently and critically. Do not rely on a “this is how we handled the last situation” approach to accommodation requests without ensuring that you have looked at the individualized and unique components of the specific request, the employee’s restrictions, the job’s essential functions, and the needs of the particular department.
IV. Job Restrictions
Often employers will spend lots of time and energy trying to understand the employee’s underlying disability or medical condition – in some cases performing extensive research – even after a doctor has certified that the employee is indeed disabled. Employers should focus on the nature of the restrictions created by an employee’s disability or medical condition rather than the disability or medical condition itself – although there may be circumstances in which issues related to the condition are important. For example, questions about an employee’s anxiety disorder or depression are often less important than questions about the employee’s requests for an accommodation associated with the condition (e.g., a schedule change or reduction in hours). While it would be inappropriate to question the validity of the underlying diagnosis (assuming the employee has a valid doctor’s note confirming these conditions), it is appropriate for an employer to ask for additional details about the employee’s work restrictions: How long are they expected to last? Can he or she work only part-time? Are these specific hours during which the employee can or cannot work? Is full-time work an essential function of this position?
V. Reasonable Accommodation
A reasonable accommodation is a modification or adjustment that is effective in enabling the employee to perform the essential job functions of the job he or she holds. The key words in this definition are “reasonable” and “effective” – which refer to related but distinct concepts. An accommodation first and foremost must be reasonable. Reasonableness is subjective and, thus, hard to define. Nevertheless, employers should perform a diligent analysis that is creative, but also logical and fair.
In addition to reasonable, an accommodation must be effective. Just because an accommodation is reasonable (it is just and does not create an undue burden), does not necessarily mean that it will be effective in allowing the employee to perform the job in question. Consider, for example, an employer analyzing the feasibility of a request to buy an employee an ergonomic chair. Though this might be a reasonable accommodation, it will not be effective if the employee’s restrictions stem from a psychological disability. Unless the requested accommodation is geared toward providing the disabled employee an equal opportunity to do the job, it will likely not meet the “effectiveness” test.
These concepts all work together. An employer is obligated to begin the interactive process with an employee as soon as it is aware that there may be a need for an accommodation. This process involves transparency and good-faith; it is a time during which information is exchanged so that the employer can determine whether the employee’s restrictions can be matched against the essential job functions. The information gleaned from this process will allow employers to make an individual assessment looking at the employee’s unique job descriptions to see whether a reasonable accommodation can be designed and implemented so that the employee can continue to be an asset to his or her employer. If you understand, the phrases that are key in the disability and accommodation framework, you will be more prepared to respond to requests for accommodation in a legally compliant way.
Patti C. Perez is a shareholder in the San Diego office of Ogletree Deakins.