ADA Compliance through the Interactive Process

by on December 17, 2008 · 0 Comment POSTED IN: HR Info Center

ADA Compliance means communication between the employer and the employee

The Americans with Disabilities Act protects qualified individuals with disabilities who are able to do their jobs “with or without reasonable accommodation.” If you don’t think an employee can do his or her job because of a serious physical or mental impairment, you’re duty-bound to see whether you can accommodate the person. This may be done by; rearranging job responsibilities, revamping schedules, or transferring the employee to another job with similar conditions and pay. Other methods of ADA compliant accommodation may also be available in your particular situation.

It’s not always easy to figure out what accommodations are necessary, or what’s reasonable for the company in terms of expense and time.

Note: You’re not obliged to spend bags of money on an accommodation – the courts don’t see that as a reasonable demand on a business. But if you and the employee can’t agree right away on what a reasonable accommodation is, you may have to engage in what the law calls an “interactive process.” Essentially, ADA compliance may be achieved thru a series of offers and counteroffers until, hopefully, a mutually agreeable solution is reached.

Here’s an example of how a company did the interactive process right.

“I want to take the qualifying test to move up a pay grade,” Manuel Borracho told his supervisor, Marvell Steen.

“Fine, we’ll arrange it,” Marvell said. “You’ve got enough experience now, it makes sense for you to try.”

“One thing,” Manuel said. “You know that time I hurt my foot?”

“Sure,” Marvell said. “You were off work for a month. What was it, a broken ankle?”

“Yeah, and it still bothers me.” Manuel said. “So anyway, for me to pass this test I need some changes so I can operate the machine fast enough. You know, there’s a foot pedal, and with my foot…”

“I get you,” Marvell said. “Let’s see what we can do.”

Marvell took the problem to the company’s ergonomics consultant, who suggested modifying the machine on which Manuel was going to test by moving the foot pedal to knee level. Manuel said that wasn’t good enough.

So Marvell told Manuel to get an updated evaluation of his foot problem from his doctor, as a basis for further discussion. Manuel said he would, but he never provided any new information. Instead, several months later, he filed an ADA lawsuit against company for discriminatory failure to promote.
The company won. The court said the company engaged in the interactive process in good faith, and Manuel dropped the ball by not furnishing material that the company reasonably asked for.

(Kratzer v. Rockwell Collins)

Another employer wasn’t so successful, because it tried to substitute its own device for the interactive process that the law wants to see. Here’s what happened.

ADA Compliance won’t break your back.

Nurse Brooke Gladby held her hands to the small of her back and stretched before she sat down in the office of nursing supervisor Roberta Evers.

“Looks like the back is still playing up,” Roberta said.

“Not so bad today,” Brooke said. “It’s a little sore, but as long as I don’t have to lift a patient, I’m OK. Everything else is manageable.”

“But it’s in your job description that you have to lift patients where necessary,” Roberta said. “In fact, some of the other nurses on the ward have complained about having to take over that duty for you since you returned from your back surgery.”

Brooke flushed. “Nobody has said a word to me,” she said.

“They wouldn’t necessarily,” Roberta said. “But in any case, there is a positive way forward: I’m going to put you in the Return to Work program. It gives you 90 days to interview for other jobs here at the hospital. You’re highly qualified, and I have no doubt you’ll find something. Good luck.”

As it happened, Brooke interviewed for several jobs but wasn’t selected for any of them. So the hospital terminated her at the end of 90 days. Brooke filed an ADA lawsuit, claiming that the employer failed to accommodate her in a reasonable way so that she could continue to do her ward nurse’s job. The court agreed with her that the employer’s response wasn’t sufficient.
Instead of opening a dialogue with Brooke and her colleagues toward a possible accommodation, the hospital substituted its Return to Work program. This theoretically gave Brooke a chance to find another job, but also exposed her to termination. (Ross v. Alegent Health)

How the supervisor slipped up:

Instead of investigating what could be done to minimize Brooke’s lifting of patients without placing an undue burden on the other nurses, Roberta passed the buck to a questionable process that spared her any effort toward a real accommodation.

ADA Guidelines for Managers

The goal of the interactive process is, of course, to find a way to allow a disabled employee to keep working productively, in the employee’s interest and yours. But if a solution can’t be reached, and legal action ensues, it’ll look good if you’re the one who made the last offer, leaving the ball in the employee’s court.

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