In a recent webinar attorney Steve Luckner, of Ogletree Deakins, was talking about the intersection of the ADA, FMLA and Workers’ Comp laws. In his discussion he mentioned the requirement of the interactive process under the ADAAA. He mentioned something that I have heard in other presentations. Companies are not paying attention to the interactive process. Of course this is not a big surprise since HR documentation is probably at the bottom of the list of favorite things to do in a company. According to attorney Lorene Schaefer, despite the fact that the ADAAA has been in place since January 1, 2009, two court cases as recent as the fall of 2013 stress the importance of the interactive process.
The key point about the interactive process is that it needs to be truly interactive. A series of emails going back and forth is not going to be sufficient. There needs to be a conversation, preferably face-to-face. Because the HR person holding this discussion does not really know the job being discussed there needs to be someone who knows the job involved with the discussion. You need to look at job functions, the job description, and current medical documentation of the employee’s condition. The current condition is important because time may have passed from the original situation and physical changes may have occurred (for better or worse.)
I am not sure how many times I have written and talked about the importance of documentation. It goes double for this situation. You need to have:
- Dates and times communication is attempted.
- Dates and times conversations actually occurred and who was involved.
- What options were considered and what was rejected and the reasons why those rejections were made.
- When was the employee notified of the decision and any ensuing discussions that took place.
Then do more
Once you have done all of that you are not done. The ADAAA allows the employee to appeal your decision if they disagree with it. They are allowed to ask you to reconsider your decision and have you explore other options. Again this needs to be interactive and documented. You have to show that you were listening and considering. Off-handed rejections or refusal to participate in the interactive process will most likely land you in court. In fact that is what occurred in the two cases Schaefer referenced.
So for those of you who have not revised your process you need to take a look at your policy, your procedures, and your documentation processes to make sure you are prepared to handle the new demands of the interactive process. This law makes it much easier for people to claim a disability. The definition of what is a disability now brings approximately 75% of the population under coverage. The life activities covered are also broadly expanded. As Luckner said in his presentation the question of disability is no longer the issue, it is now a question of accommodation. Good preparation is important to you effectively handling these situations. Good luck.