In the working world, everyone functions in a different way. When these functions are affected by a disability, whether it be physical or mental, sometimes employees need a little help from their employers to ensure they can perform the essential job functions of their position. The Americans with Disabilities Act of 1990 (“ADA”) was enacted to provide disabled workers this additional help in what is known as a reasonable accommodation.
A reasonable accommodation can take on many forms, whether it be an ergonomic chair, a quiet workspace, additional bathroom breaks, a flexible working schedule, etc. Accommodation options are endless, it just depends on your needs, your employer, and the resources they have available to accommodate you. (Best Law Read: Disability Discrimination: Can I Get A Work Accommodation?, Can I Switch My Disability Accommodation?, and Top Disability Discrimination Lawyer Reply: Can I Bring A Service Dog To Work As A Disability Accommodation Under The ADA?). If you think you need a reasonable accommodation under the ADA, you should notify your employer immediate to preserve your rights.
Today, we are going to look at a recent ADA case, Dansie v. Union Pac. R.R. Co., 42 F.4th 1184 (10th Cir. 2022), in which the United States Court of Appeals for the Tenth Circuit provided great insight into the disability accommodation process at work.
So, you requested a reasonable accommodation, now what?
Best ADA Employment Law Attorney Answer: Great questions. According to the Dansie Court, “[w]hen an employee provides notice to his employer of a disability and expresses a desire for a reasonable accommodation, the employee and the employer must engage in good-faith communication—what we have termed the interactive process.”
When talking to clients and potential clients, it seems no one really knows enough about the interactive process under the ADA. The interactive process is not just a suggestion, it is a requirement. (Best Law Read: What Is The Interactive Process For Disabled Employees?).Why is an interactive process required? It is required so that the employer and employee can determine if a reasonable accommodation is available. Notice I have been calling it a “reasonable” accommodation, not just an accommodation. This is because, employers are not required to just provide whatever accommodation a disabled individual requests. (Best Law Read: Can I Pick The ADA Accommodation I Want?). Generally, the interactive process requires some back and forth, and weighing options between both the disabled worker and the employer. Once an employer is on notice an employee needs a reasonable accommodation, the employer can figure out what accommodations they can actually provide and what is reasonable based on the employer’s resources. (Best Law Read: What’s A Direct Threat Defense Under The ADA?; Does My Boss Have To Give Me An Interpreter?; Can I Bring My Dog To Work As An ADA Accommodation?).
What is an example of the interactive process:
Best Employment Lawyer Answer: Let’s use Dansie as an example to explain what is required under the ADA for the interactive process. Kelly Dansie worked for Union Pacific Railroad Company as a full-time Conductor beginning in 2004. While employed with the Railroad, Dansie was working with a HIV-positive diagnosis and also was in remission from testicular cancer. Due to his medical conditions, Dansie required ongoing treatment to manage his symptoms and allow him to function in both the regular and working world.
During 2014, Dansie used legally protected leave under the Family and Medical Leave Act (“FMLA”) to cover his absences. (Questions about the FMLA? Click here.) However, in September 2014, the railroad terminated Dansie for alleged safety violations. Dansie was able to appeal the decision and get his job back and returned to work with the railroad in January 2016.
Just eight months after Dansie was reinstated, the railroad charged him with violating its attendance policy after having to take paid leave for illness and medical treatment. At this point, Dansie decided to request a reasonable accommodation under the ADA. Dansie was referred to the railroad’s director of disability management, Terry Owens, who provided Dansie with paperwork for his provider to fill out.
After contacting Owens, Dansie had his medical provider fill out a form provided by the railroad. However, a question arose while filing out the form as to what the railroad defined as “full-time employee.” When Dansie told the railroad that his doctor would need to see the railroad’s definition of full-time employee to complete the paperwork, the railroad did not provide clarification.
Dansie ultimately did submit two forms to the railroad, however, without clarification on the attendance policy. Upon review, Owens told Dansie time off had to be specified, and Dansie again requested guidance on the attendance policy. After some conversation with Owens, but still no clarification on the attendance policy, an additional form was submitted requesting five days a month off for the employee, but also cautioned that this was subject to change because of the nature of Dansie’s medical conditions.
What happened next is unclear, but let’s just say that Dansie thought his request was approved, although there was no paper trail (Side note: ALWAYS HAVE A PAPERTRAIL). However, internal communication between railroad employees showed that the railroad would not be accommodating Dansie’s request. Prior to termination, as no one seemed to be on the same page at the railroad, Dansie requested additional assistance from Owens, but to no avail. Dansie was ultimately fired for attendance issues.
So, what do you notice here? I’ll tell you what I noticed. I noticed a lot of confusion, and not a whole lot of actual conversation between Dansie and the railroad. Does that sound interactive to you? Not answering an employee’s questions, sure does not sound interactive to me.
The Court in Dansie identified that the interactive process is:
An affirmative obligation to undertake a good faith back-and-forth process between the employer and the employee, with the goal of identifying the employee’s precise limitation and attempting to find a reasonable accommodation for those limits. (citing Aubrey, 975 F.3d at 1009 (citations omitted). The process beings with the employee providing notice to the employer of his disability and any resulting limitations . . . [t]his notice triggers the employer’s responsibility to engage in the interactive process where both parties must communicate in good faith. Id. (emphasis added).
In the facts I provided above for the Dansie case, does it look like both parties communicated in good faith? What I see is Dansie asking questions, and the railroad never answering them. And, if I am not mistaken, interactive require two or more people. The Court in Dansie seems to agree with me, because they allowed the matter to move forward on the basis that a jury could reasonably find that the railroad failed to engage in the interactive process. The Court specifically points to the railroad’s failure to respond to Dansie’s requests for clarification on the railroad’s attendance policy.
Why is the interactive process so important?
Best Disability Employment Attorney Answer: Because we said so. Just kidding.
The goal of the interactive process is to determine whether a reasonable accommodation exists that would enable a disabled employee to perform the essential functions of their job. The Dansie Court lays out the burden-shifting formula to determine whether an accommodation is reasonable:
First, the employee must show that an accommodation appears reasonable on its face. [Aubrey, 975 F.3d at 1010] (citation omitted). Second, if the employee meets the initial burden, “the burden of production then shifts to the employer to present evidence of its inability to accommodation.” Id. (quotation omitted.) At that point, the employer must show special circumstances that prove undue hardship in the particular situation. Id. (quotation omitted). Third, if the employer presents such evidence, then the burden shifts back to the employee who must “com[e] forward with evidence concerning [his] individual capabilities and suggestions for possible accommodations to rebut the employer’s evidence. Id. (quotation omitted).
For example, an employee asking for an employer to tear down an entire building and rebuilt to accommodate them would not be reasonable or even feasible. On the other hand, if the employee and employer work together to figure out what the employee needs and what the employer can do based on time, money, staffing, etc., then the employee can submit a request for something plausible.
What should I do if I requested a reasonable accommodation, and my employer does not participate in the interactive process?
Best Ohio Employment Lawyer Answer: Do not wait to get advice from an attorney. Getting the right legal help from the start can make all the difference in your case. Since every case is different, your best opportunity to prevail in a disability discrimination or failure to accommodate claim is by consulting an ADA lawyer as quickly as possible. If you are disabled or your employer perceives you as being disabled; and you have been fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied wages, or even think that you might need a disability discrimination lawyer, then call the right attorney to schedule a free and confidential consultation. The best option is not to wait. Call our lawyers in Cleveland, Columbus, Toledo, Cincinnati, Youngstown, Detroit and Raleigh to get help now. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting disabled employees’ rights under ADA and Ohio employment law.
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