Contributors

Christian Scali

Founder and Managing Shareholder

Jennifer Woo Burns

Of Counsel

Jasmin B. Bhandari

Principal

Although employers are generally aware that they must provide reasonable accommodations for disabled employees, which could include modified work duties, leaves of absence, or reduced schedules, there is an additional obligation that is often overlooked: the obligation to engage in the interactive process. In fact, under the Fair Employment and Housing Act, the failure to engage in the interactive process creates an entirely separate legal claim.

So what is the interactive process?

It is the process by which employers and employees together participate in analysis and dialogue regarding the appropriate accommodations for the employee’s disability. When a qualified disabled employee needs an accommodation, the employer should consult with the disabled employee to identify potential accommodations and assess their effectiveness for performing the essential functions of the position. The employer should also consider the preference of the employee and use the accommodations that are most appropriate for both the employee and the employer.

The most important element of this obligation is communication

The employer should have an in-person meeting, if possible, with the employee to review the employee’s limitations and discuss how the job could be done with those limitations. But no matter how the communications are held, the employer should get the employee’s input and feedback about the accommodations, and then come up with a plan together. As such, it would not be appropriate for an employer to just unilaterally notify the employee of their modified job without asking the employee for his or her input.

It is also VERY important for the employer to document all of the communications with the employee to show that they met their interactive process obligations. Employers may want to consult with counsel in preparing this documentation.