THE INTERACTIVE PROCESS ITS ROLE IN PREVENTING DISABILITY DISCRIMINATION

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1 THE INTERACTIVE PROCESS ITS ROLE IN PREVENTING DISABILITY DISCRIMINATION By Kathy Barnes-Jones Employee injuries or illnesses may result in disabilities that can create immense liability for employers. Under the Americans with Disabilities Act (ADA) and the Fair Employment & Housing Act (FEHA), civil rights protections are provided to disabled employees that must be adhered to by employers. ADA and FEHA claims require employers to use the Interactive Process to determine if a reasonable accommodation can be provided that can allow an employee to perform the essential functions of their job. Workers Compensation laws are also important here since many employees become disabled as a result of a job-related injury or illness. It is important for organizations to understand the Interactive Process and how it can help them meet legal requirements and greatly reduce liability. Strategic use of the Interactive Process provides legal protection to all disabled employees, while it offers a structure employers can use to comply with their ethical and moral responsibilities and maintain a diverse, knowledgeable, flexible and well-trained workforce. How does an employer accurately define a disabled employee? What is the Interactive Process, and how can it be mutually beneficial to an employer and a disabled employee? What is a reasonable accommodation? In order to understand why the Interactive Process is necessary, a description of the term disability will be followed by a brief outline of disability law. Also, an overview of the Interactive Process, its key components and its importance to employees and employers will be included. Finally, a case will be made for the value of Union leadership understanding this important process to ensure the rights of their members. Disabled Employee The Wilke Fleury Labor and Employment Newsletter highlights the varied definitions of disability as follows: Disability has distinct meanings under workers compensation laws, the Fair Employment & Housing Act (FEHA), and the ADA. Under workers compensation, a disabled employee is any employee who has suffered a workplace injury that restricts the worker s ability to perform the job. The FEHA, by contrast, specifically defines disability as an impairment that limits an individual s ability to participate in a major life activity, which California courts construe broadly to include anything that makes achievement of job functions difficult. The ADA defines the term more rigidly as an impairment that substantially limits a major life activity. As a result, a condition that constitutes a disability under workers compensation may not necessarily qualify as one under the FEHA or the ADA. For example, an employee might be able to file a workers compensation claim for even a relatively minor workplace injury (and for any discrimination resulting from it, but unless the injury limited a major life activity), relief under the FEHA or ADA would be unavailable. According to Employment Law, the Essential HR Desk Reference by Lisa Guerin, J.D., impairment qualifies as a disability even if it is episodic in remission, as long as it substantially limits a major life activity when it is active. This rule, added by the ADAAA, is intended to ensure that obviously serious conditions, like cancer and multiple sclerosis, are treated as disabilities. Even if the degree to which they impair someone s day-to-day functioning waxes and wanes. It also says that if someone currently uses illegal drugs they are not protected by the ADA, even if the person is addicted. However, if someone no longer uses drugs illegally and is participating in or has completed a drug 1

2 rehabilitation program, they are protected from discrimination. An employee who is an alcoholic is also protected by the ADA, but the employer may apply its usual standards of behavior and performance. For example, an employer may discipline an employee who misses work without notice, even if the employee is an alcoholic and was absent because of a binge-drinking episode. What the employer may not do is punish the employee simply for being an alcoholic (for example, because the employee attends Alcoholics Anonymous meetings or takes prescription medication to curb the urge to drink). Realistically though, any employee could become disabled at any time due to an unforeseen circumstance and would need legal protection under the law. To fully grasp the value of disability laws, it is important to acknowledge that disabled individuals have faced numerous obstacles that prevented them from full participation in the employment arena. In the past, work-related injuries or illnesses or disabilities could make a person unemployable. The ADA, FEHA and Workers Compensation laws were created to provide protection from discrimination resulting from an individual s disability. As noted in The American s with Disabilities Act 3, Acknowledging that disabled persons are as equally entitled to participate in society as non-disabled Americans, the federal government intervened to provide the disabled with effective legislation to enforce their rights. In 1990 Congress passed the ADA to provide civil right protections to individuals with disabilities and is enforced by the Equal Employment Opportunity Commission (EEOC). The ADA prohibits discrimination against applicants and employees who are qualified individuals with a disability. Workers compensation is a statemandated insurance program that compensates employees who experience job-related illnesses or injuries, and it is managed by the State Workers Compensation Commission. In California these type laws have been in effect for decades. FEHA specifically prohibits discrimination based on mental or physical disability (along with other criteria such as age, medical condition, and marital status). California disability laws have historically offered greater protection to employees than federal law. As noted above, both the FEHA and ADA prohibit disability discrimination and require a reasonable accommodation process. (A reasonable accommodation is a modification or adjustment to a job, the work environment, or the way things usually are done that enables a qualified individual with a disability to enjoy an equal employment opportunity.) FEHA and ADA claims generate a responsibility of an employer to engage in an Interactive Process to determine if a reasonable accommodation can be provided that would allow the employee to perform the essential functions of the job. What exactly is the Interactive Process? The Interactive Process The Interactive Process can be defined as a forum that incorporates good faith communication that allows the employer to maximize opportunities for the disabled employee to receive their disability civil rights by providing reasonable accommodations. This process allows the employee to participate in the decision-making process regarding reasonable accommodations. Proper use of the Interactive Process can help an employer avoid financial liability associated with violation of ADA and FEHA laws. According to Mediate.com, employers are required to engage in the Interactive Process. If an employer neglects (or refuses) to engage in the Interactive Process, it does so at its own peril. The failure to participate in the Interactive Process in good faith deprives the employer of its immunity from damages for failure to reasonably accommodate an employee. Generally, if an employer fails to provide an employee with a 2

3 reasonable accommodation, that employee can recover damages. However, if the employer engages in the Interactive Process in good faith, that employer will be immune from damages. An employer can greatly reduce the risk of ADA liability by engaging in the Interactive Process in good faith by demonstrating that they have had an open dialogue with employees and have worked with them to find solutions. According to SMART HR Manager.com, when an employer fails to participate in the Interactive Process of finding a workplace accommodation for an employee with a disability, that misstep can be used as evidence of discrimination. Disability discrimination exposure includes failure to reasonably accommodate, failure to engage in the Interactive Process, discrimination adverse employment action, harassment and retaliation. Under FEHA, if an employer fails to reasonably accommodate an applicant or employee, the Federal Employment & Housing Commission can order the employer to cease and desist the discriminatory practice; to hire or reinstate; and award actual damages including but not limited to, lost wages; emotional distress damages, and administrative fines not to exceed $150,000. If the matter is heard in civil court, the potential damages would be unlimited. The FEHA requires that, Once a disability that is protected under the law is established, an employer is obligated to provide a reasonable accommodation unless the accommodation would represent an undue hardship to the business operation. As noted by Jody Florentine, in Interactive Process 101, An employer could fully accommodate a disabled person and still violate the statue if the decisions were made unilaterally or without first engaging in the Interactive Process. The employer s goal is to return the employee to work in a productive capacity as quickly as medically possible after a disabling injury or illness. Once the employee requests an accommodation or the supervisor observes a need for one, the following steps should be taken: 1. Review relevant records (including medical documents) that support the need for reasonable accommodation. This should include work capabilities and restrictions. If physician directions are unclear, request clarification. 2. Identify the essential job functions using a job description and information from the employee s supervisor. The essential functions of the job include the fundamental reasons a job exists. An employer is not required to remove essential functions of a job to accommodate the injured worker. 3. Engage the employee in a discussion to identify potential barriers to performing essential job functions that could be addressed with reasonable accommodations. Fully document all conversations for the record including date, attendees, any decisions reached, or agreed to follow-up actions. Marlon Robbins, MPA, ARM, Dennis Huie, Esq. and Eric Dair, Esq. of Robbins Risk Consulting and Training recommends that these type discussions include all activities, physical demands, environmental conditions, frequency of activities and hours per day required for each activity. 4. Investigate (by discussions with the employee, their supervisor, and possibly a union representative) and evaluate all potentially feasible job modifications or accommodations. 5. Analyze whether the modifications are a reasonable accommodation or if they create an undue hardship for the employer. 6. Offer or reject reasonable accommodation. Implement decision and document the entire process (in writing). 3

4 7. Implement and monitor the accommodation to ensure it is effective, making adjustments if necessary. Accommodations that are found to be problematic can be withdrawn or modified if they do not allow the employee to perform the essential functions of his/her job or possibly become a burden to their employer). Agreements made in meetings should be clearly expressed (in writing) to those who are offered accommodations so they will understand which specific conditions are part of the accommodation and what their performance expectations are. If applicable, it would be important for the employer to define which performance standards are being modified and which are not. Any such clarifications should accompany the accommodation. According to HR and Employment Law News, the Interactive Process is ongoing. If an employee s circumstances change, the Interactive Process should include making the necessary adjustments to reasonably accommodate the employee. Failure to properly work with employees to find reasonable accommodations can result in a bottomless pit of liability to a careless employer. To move forward with the Interactive Process, only basic medical information is necessary such as the diagnosis (pertinent to the disability); the prognosis or status (Maximum Medical Improvement [MMI] or Permanent & Stationary [P&S]); treatment regimen or therapy appointments; medical side effects; and restrictions related to the impairment. Nothing outside of information directly related to the work-related disability should be requested or discussed. What exactly could a reasonable accommodation include? Reasonable Accommodations Reasonable accommodations may include: Acquiring or modifying equipment or devices; Job restructuring; Adjusting or modifying examinations, training materials or policies; Providing readers and interpreters; Making existing facilities accessible to and useable by workers with disabilities; Modifying work schedules; Reassignment to a vacant position. FEHA entitles an employee with a disability to Preferential Consideration in reassignment or transfer to a vacant position; Paid or unpaid leave; Alcohol or drug rehabilitation programs; In 2008, President Bush signed the Americans with Disabilities Act Amendments Act (ADAAA), which made a number of changes to the ADA. The stated purpose of the ADAAA was to make clear that Congress intended for the term disability to be interpreted broadly, in order to provide a national mandate to end discrimination against people with disabilities. The ADAAA went into effect on January 12, But it is equally important for employers to know what, if any, exceptions exist. According to the Essential Guide to Federal Employment Laws, there are four major exceptions to employers responsibilities under the ADA: 4

5 Undue hardship. Employers are not required to make an accommodation for a qualified person with a disability if making the accommodation would cause the employer an undue hardship. Whether an accommodation creates an undue hardship depends multiple factors such as the cost of the accommodation, the size and financial resources of the business, the business structure and the effect the accommodation would have on the business. Direct threat. An employer may transfer or terminate a qualified individual with a disability if having them on the job would pose a direct threat to their own health or safety or to the health or safety of other workers. Religious institutions. Churches or other religious institutions may prefer applicants who conform to the tenets of their religion over otherwise qualified applicants with a disability. Food handling. If a job requires food handling, an employer can refuse to hire someone with an infectious or communicable disease if a reasonable accommodation cannot eliminate the risk of transmitting the disease. Some agencies engage in the Interactive Process when modified duty or a work hardening assignment has reached the twelfth week and the employee is not medically able to return to their usual and customary assignment. The Interactive Process will be conducted to determine and explore other possible future assignments if an employee is not medically able to return to their usual and customary job at the end of a work hardening assignment. If a qualified employee with a disability or medical condition cannot perform the essential functions of their current position, with or without accommodation, the employer may choose to explore reassignment to a vacant position. Promotions, creation of new positions, or displacement of other employees are not a required part of the accommodation process. Unions Many employees who experience a job-related injury or illness do not fully understand the ADA, FEHA and Workers Compensation laws that may provide them with important legal protections. Unions as a general rule should be as knowledgeable about the Interactive Process as possible so they can protect the rights of their disabled members. Union leadership can do much to assist their members to develop creative ways to reasonably accommodate disabled or injured workers. Union leadership should take responsibility for informing their members of the help that is available for their injured or disabled members. It should be noted that an employee s rights under FEHA may not be waived or bargained away via Collective Bargaining Agreements (CBA), although a CBA may affect whether an accommodation is considered reasonable. Mutual Benefits of Reasonable Accommodation Employees who have a medical condition or disability as defined by federal and state law, have the right to be free from discrimination on the basis of that condition or disability. When the Interactive Process is effective, these employees have opportunities to be reasonably accommodated and to participate in that decisionmaking process. This reduces the fear of job loss that was so common for disabled employees before protective laws were instituted. 5

6 Employers who strategically manage the Interactive Process have policies in place to assist supervisors and managers to work cooperatively with Human Resources to acknowledge requests for reasonable accommodation and document the complete process. This helps the organization prevent disability discrimination and avoid the tremendous liability that can result from missteps in this arena. Documentation is a valuable part of the process, particularly so an employer can prove their good faith efforts and show that various accommodations were offered. If an employer ends up in court, such documentation is critical to prove that reasonable accommodations that were offered to the employee. Although the ADA does not require that job descriptions include essential job functions, employers who want to protect themselves from potentially costly litigation can ensure that a description is completed for every position. Job descriptions should clearly identify essential job functions and the physical/mental requirements of each function. It is most helpful if the essential functions are described in terms of the results or outcomes of a function. Accurate job descriptions are one way to help employers make fair and objective decisions regarding employment issues. Additionally, organizations who understand the importance of a well-orchestrated Interactive Process provide procedures identifying what must be done and who is responsible for the various parts of the process. A Risk Management Representative or Disability Coordinator may be responsible for advising supervisors regarding the required medical documentation and for ensuring that the necessary accommodations are in place and are working acceptably. The Supervisor may be responsible for implementing a reasonable accommodation for an employee and notifying the Risk Management Representative or Disability Coordinator of any problems or changes that arise. The Risk Management Representative or Disability Coordinator may also be responsible for ensuring that any forms that the organization provides to the employee receiving the reasonable accommodation are filled out correctly and filed for easy retrieval. The Supervisor may work closely with the Department Head if a reasonable accommodation involves a job change within the department. The more structured the program that facilitates the Interactive Process is, the less opportunity for mistakes and misunderstandings. Lastly, organizations who want to strategically manage the Interactive Process will ensure that a plan of action is developed for each disabled employee that allows for ongoing good faith communication and flexibility as circumstances evolve. Again, these programs must be structured to continually evaluate the effectiveness of an accommodation for the employee and for the organization. Employee injuries or illnesses can result in disabilities that can create great liability for employers. However, organizations that strategically use the Interactive Process can benefit from the legal protections it makes available to all disabled employees. Anyone can be injured at any time and require the legal protections afforded through ADA, FEHA and Workers Compensations laws. Use of the Interactive Process creates a structure employers can use to comply with their ethical and moral responsibilities to employees. By reasonably accommodating employees, employers are able to maintain a diverse, knowledgeable, flexible and well-trained workforce. 6

7 WORKS CITED Guerin, Lisa J.D. (2011). Employment Law: The Essential HR Desk Reference. Berkeley, California: Nolo. The Wilke Fleury Labor and Employment Newsletter, Sacramento, CA: Healthcare Law. Jasper, Magaret C. (2008). The Americans with Disabilities Act. Oceano, New York: Oxford University Press, Inc. Mediate.com SMART HR Manager.com Disability Under The Employment Fair Housing Act: What you should know about the Law CA Department of Fair Employment & Housing. Guerin, Lisa J.D. and Delpo, Amy J.D. The Essential Guide to Federal Employment Laws. Berkeley, California: Nolo. Florentine, Jody. Interactive Process 101. HR and Employment Law News Kathy R. Barnes-Jones Administrative Analyst 3 Alameda County Water District South Grimmer Blvd. Fremont, CA (510) kathy.barnes-jones@acwd.com 7