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Be Careful Not to Cut Off the Interactive Accommodation Review Process Too Quickly

By Fiona W. Ong, Shawe Rosenthal LLP (Lexology Blog, August 31, 2022)

“Just as an employee may not terminate the interactive process quickly to create liability, so too an employer may not cut off the interactive process so early that the parties cannot find a position to reasonably accommodate the employee,” stated the U.S. Court of Appeals for the Tenth Circuit in a recent case involving the Americans with Disabilities Act.

In Dansie v. Union Pacific Railroad Co., the employee requested an accommodation for his medical condition. When completing the reasonable accommodations forms, the employee and his physician requested clarification about certain definitions so that the physician could provide more specific estimates of the employee’s need for intermittent leave, but no clarification was provided. After discussions with the Director of Disability Management, the employee submitted a new form, but again, the physician noted that the unclear requirements prevented him from providing an estimate with certainty. The employee believed his accommodations request had been granted, and suggested no further accommodations. The company’s documents, however, show that it would not accommodate the requested intermittent leave. When the employee told his supervisor he thought his request had been granted, the supervisor shrugged and walked away. The employee asked the Director to explain ADA accommodations to his supervisors, but that did not happen. Instead, the employee was charged with attendance policy violations and subsequently terminated.

Under the ADA, once an employee provides notice of his need for accommodation, the employee and employer must engage in an interactive process. As noted by the Tenth Circuit, “once an employee triggers the interactive process, both the employee and the employer have an obligation to proceed in a reasonably interactive manner to determine the employee’s limitations and consider whether the accommodations he requests—or perhaps others that might surface during the interactive process—would enable the employee to return to work.”

In the current case, the Tenth Circuit found that a jury could conclude that the company failed to sufficiently engage in the interactive process, as it made no effort to discover the employee’s actual limitations or explore any other accommodations. The company also failed to clarify definitions, as requested. His supervisor refused to discuss the employee’s medical issues or the employee’s belief that his request for accommodation had been granted.

The lesson here for employers is to ensure that both managers and HR/admin personnel are trained to respond promptly and effectively throughout the interactive process. It may be that the process will not result in an accommodation, but employer representatives may not shortcut the discussion.