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Ask the Experts
Avoiding Common Mishaps During the Reasonable Accommodation Process
By Nate Kowalski, Eric Riss, and Angelo Villarreal, Atkinson, Andelson, Loya, Ruud & Romo
State and federal law dictate that employers may not discriminate against employees on the basis of their disabilities. This mandate requires cities, counties, housing authorities, transit agencies, water districts, and other special districts (“public agencies”) to timely engage in the interactive process in good faith, and provide reasonable workplace accommodations to enable disabled employees to fulfill the essential functions of their position. Mistakes made during the interactive process are one primary cause for disability discrimination claims. This article will address some common mishaps that arise during the interactive and reasonable accommodation process that public agencies should avoid.
Common Mishap #1: Failing to Recognize a Request for Accommodation
First, public agencies may fail to recognize a request for accommodation. There are no “magic words” that an employee must use to state a valid accommodation request. A public agency will be put on notice of a request for accommodation when it (a) knows the employee has a disability; (b) knows, or has reason to know, the employee is experiencing workplace problems because of a disability; or (c) knows, or has reason to know, the disability prevents the employee from requesting a reasonable accommodation.
One published decision illustrates this issue.1 A pharmacy assistant who suffered from cerebral palsy was hired to work in a pharmacy. During the hiring stage, the employer was aware of the pharmacy assistant’s disability. Shortly after his hiring, the employee was transferred to other roles within the department because his supervisor was unhappy with his performance. The employee subsequently quit out of frustration with his transfer. Although the employee did not request accommodations for his disability, the employer was found to have failed to provide accommodations, because the employer was aware that the employee had obvious speech, visual, and walking impediments. Thus, public agencies should remain mindful of legally protected accommodation requests, whether or not the employee personally submits a request or takes explicit action to notify the employer about a disability.
Public agencies may also overlook the obligation to engage in the interactive process. Once a public agency has learned about an employee’s disability and accommodation request through a third party or observation, it must engage in the interactive process.
Another published decision demonstrates how this mistake can arise.2 An employee had been initially certified for leave based on a psychiatric condition. When that leave expired, the employee submitted a form from his chiropractor stating he was suffering from a back condition and needed leave from work. The employer attempted to contact the employee directly, but failed to reach him. Instead, the employer decided to terminate his employment after considering the chiropractor’s form to be insufficient to request further leave and excuse his absence. The court found that the employer failed to engage in the interactive process by not adequately communicating with the employee about his condition and need for accommodation. While the employer argued that it was unaware that the employee had a disability, the court found the form sufficient to put the employer on notice of his disability.
Once an employee with a known disability requests an accommodation, a public agency must take affirmative steps to engage in the interactive process. Public agencies should refrain from reaching premature conclusions, premise accommodation discussions in the information provided by an employee, and seek clarification when needed.
Common Mishap #3: Assuming Every Job Function Is Essential
Public agencies must offer reasonable accommodations to employees with qualifying “disabilities” to permit them to perform essential job functions. While public agencies must act in good faith during the interactive process, they should avoid deeming all duties for an employee’s position as “essential.” A work duty may be deemed essential if the position exists primarily to perform that function, a limited number of other employees are available or qualified to perform it, or the function is highly specialized and requires the disabled employee to complete it. In determining which duties are “essential” and trigger accommodation obligations, public agencies may consult the following: accurate and current job descriptions for the position; the amount of time spent on the function; the legitimate operational consequences of not performing the function; the current experience of others in similar positions; and the employer’s judgment based on credible reasons.
In one published decision, the court considered whether a certain work function (tearing out cables) was considered essential for a cable installer employee who suffered from asthma.3 Because this particular function occupied only 12% of the employee’s time, the court determined that the function was nonessential because it was proportionately insignificant compared to the time spent on other tasks. Thus, by deeming this function as essential, the employer failed to properly accommodate the employee. Public agencies should be aware that an essential function is one that is fundamental to a position rather than marginal or sporadic.
Public agencies should attempt to thoroughly document the interactive process. Public agencies should create detailed records (e.g., taking contemporaneous notes) documenting their discussions with employees during the interactive process, as records are often found to constitute compelling evidence that the interactive process occurred and in the manner described by the employer. Conversely, an employee can highlight a public agency’s lack of documentation to argue that the interactive process did not occur, or to dispute the employer’s account of what transpired during a particular meeting.
In another litigated case, an employee with Asperger’s Syndrome contended that her employer did not take reasonable measures to accommodate her condition.4 However, the employee repeatedly engaged in obstructive and uncooperative behavior in response to the employer’s good faith attempt to discuss accommodations. The employee’s documented failure to engage in the interactive process ultimately undermined her accommodation claim. This case illustrates the need for public agencies to document the interactive process.
Common Mishap #5: Failing to Train Managers and Supervisors
Finally, public agencies should ensure that managers and supervisors receive adequate training on how to engage in the interactive and reasonable accommodation process. Without training on how the interactive process works, unaddressed accommodation requests may occur more frequently due to managers’ ignorance about their obligations and best practices. Additionally, standardized training can help ensure that different department managers or supervisors follow the same process, use the same forms, and apply standards consistently in seeking to accommodate employees. Training can also help staff avoid asking inappropriate questions regarding an employee’s medical condition, or otherwise act in a manner that may be viewed as discriminatory or retaliatory in nature based on an employee’s disability and/or accommodation request.
Please contact the authors of this article, or your district’s legal counsel, if you are interested in conducting training for the managers and supervisors at your agency.
1 Brady v. Wal-Mart Stores, Inc. (2d Cir. 2008) 531 F.3d 127. 2 Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864. 3 Ackerman v. Western Elec. Co., Inc. (N.D. Cal. 1986) 643 F.Supp. 836, 844-846. 4 Huge v. Boeing Co. (W.D. Wash. 2015) 2015 WL 6626568.
