Your Compliance Toolbox: 7 Tips for a Successful Interactive Process
Published Date: August 28, 2015
Dealing with issues related to accommodation requests at work can be a daunting task—even for the most seasoned HR or legal professional. The path to a successful interactive process and a meaningful analysis of an accommodation request is fraught with landmines at every turn. Though professionals are required to use judgment and perform an individualized assessment for each new accommodation request, there are some protocols employers can use as a guideline each time the need arises.
When faced with an accommodation request, employers can follow this seven-point checklist to make the interactive process more manageable:
Process and People. Review your company’s policies and practices and ensure that someone is assigned to interact with requesting employees.
Communication. Communicate with requesting employees immediately and document your communications.
Employer Documents. Collect documents that define the essential job functions and any other important company information.
Employee Documents. Ask for all necessary medical documents that explain the restrictions created by the employee’s disability or medical condition.
“Match” Analysis. Analyze whether there is a “match” between the restrictions and the job duties (and/or department or company).
Explain Decisions. Document your accommodation analysis (whether it is granted, denied, or you offer an alternative).
Follow-up. Stay in contact with the employee to ensure effectiveness.
1. Process and People
Make sure your company has a consistent, streamlined process for handling accommodation requests. Review your company policies regularly to ensure that they are up-to-date and provide employees with clear guidelines on the steps necessary to make an accommodation request. In these guidelines, be sure to explain who will oversee the process on behalf of the company, as employees often do not know with whom to speak to start the interactive process. Ideally, your company will select one or more individuals to oversee this process. The selected individuals should understand legal compliance issues; be familiar with company policies, practices, and business philosophies; and understand the practical components of disability accommodations.
Experienced professionals who oversee the interactive process and analyze reasonable accommodation requests will know when the duty to begin this process is triggered and will understand the legal ramifications of failing to meet federal and state legal requirements. They also know that legal compliance is only one piece of this complicated puzzle. An experienced disability professional also understands the practical nuances that go beyond legal compliance.
The interactive process requires that both employees and employers communicate in good faith. This communication should be a true conversation—one that is mutual (and not one-sided), reasonable, timely, and ongoing. Rather than viewing this process as an obligation (which, legally speaking, it is), an employer can view the process as opportunity to connect with employees to determine whether there is a solution that will allow the employee to perform his or her job and allow the company to retain a productive and committed employee.
This means that the employer’s representative leading the interactive process on behalf of the company should also ensure that there is a clear record of all communications with the employee. These communications may occur via email, memo, letter, or even text message. Of course, communications with employees may also be verbal—in which case employers may want to confirm what was said during the relevant conversations with a follow-up note. These conversations often require precision and it is in everyone’s best interest to maintain a clear record of employee requests, the employer’s analysis of the situation, both sides’ responses during the communication process, and all suggested plans.
3. Employer Documents
There is no such thing as starting to soon on the process of analyzing an accommodation request. As soon as employers become aware of an employee’s need, or receive a request, for an accommodation, they should begin collecting relevant information. This information will ultimately allow an employer to determine whether an accommodation exists that will allow the employee to perform his or her job. Remember that when it comes to accommodation requests, the employee (and his or her doctor) is the expert on the medical condition and its restrictions, whereas the employer is the expert on the details of the job position or the company.
In every instance, the accommodation analysis will require the employer to have a deep and accurate understanding of the job’s essential functions. The best place to start is with the job description, of course. Don’t stop with the description–there may be other documents that define the job duties, such as job postings, media or marketing descriptions, or performance evaluations. Employers may also want to start looking at organizational charts to understand details related to the department in which the employee works: reporting structures, the number of employees in a particular job or position, and other such factors may prove useful in the accommodation analysis.
Beyond that, employers may need to begin collecting documents that are specific to the accommodation request. For example, if an employee is asking for a transfer, the employer may need to print a list of available positions or, if an employee is seeking an alternative schedule, the employer may need to confirm core operating hours. In short, it’s helpful to become an expert on the job in question as well as the relevant department.
4. Employee Documents
While you are collecting relevant company documents, make sure to make clear and precise requests for the requesting employee’s medical documentation. Refrain from asking for medical information (such as the underlying cause for condition), but do ask for a clear description of the employee’s restrictions, even if you need to make repetitive requests. For example, a note indicating that the employee needs to work part-time would be insufficient if the job is one that requires specific hours. In this case, the employer may ask for more documentation specifying the employee’s restrictions.
5. “Match” Analysis
Once you have collected all relevant employment documents (providing you with a deep understanding of the job’s essential functions, the needs of the department, and the company’s policies and practices) as well as all information related to the restrictions imposed by the employee’s medical condition or disability, you are ready to conduct a detailed analysis of whether the requested accommodation—or an alternative one—is a match for the employee’s current job, the department in which he or she works, and the company.
In some cases, the requested accommodation will be reasonable and will effectively allow the employee to perform his or her job duties (remember that in addition to the need for reasonableness, the accommodation selected should be effective). In other cases, the requested accommodation may not work. In this scenario, an employer must keep the lines of communication open and think creatively to explore alternative accommodations that might solve the issue.
In some cases, the employer will not be able to find an appropriate accommodation. For example, perhaps the employees is simply not a “qualified disabled individual” (he or she cannot perform the essential functions of this or an alternative job with or without reasonable accommodation because of the restrictions imposed by his or her disability or medical condition) or perhaps the requested accommodation would cause the company an undue hardship (note that the law imposes a very high standard to show that an accommodation would cause an undue hardship).
Remember, if you are not able to find a solution but a decision-maker is able to find one later (perhaps during litigation), your attempts to engage in the interactive process will likely be interpreted as insufficient. For this reason, be sure to exhaust all accommodation options before determining that the company is unable to offer the employee an accommodation.
6. Explain Decisions
In many cases, a company will analyze the issue and find a solution, but fail to fully explain its actions to the employee. Even if an employer grants a requested accommodation, it should explain why it did so and indicate that it will continue to monitor the accommodation for effectiveness.
If you are unable to grant the requested accommodation, explain why you denied it and attach supporting documents if they are necessary or helpful in explaining your determination. If you offered an alternative accommodation, clearly describe that choice and why the employer chose it. Having this analysis in writing provides the employee with an easy-to-understand road map of your decision and ensures you are both on the same page moving forward.
The interactive process is not over simply because you made a decision about the accommodation request. Stay in touch with the employee to make sure the selected accommodation continues to be effective. Also, check in with managers and supervisors to confirm that the accommodation is still reasonable and is not causing problems. Continue to have these discussions and be sure to keep your file up-to-date to ensure clarity.
By following these seven steps, employers will streamline the process of receiving and analyzing requests for accommodations. Of course, employers will still be expected to use their best judgment and make individual assessments with each new request, but using these seven steps will simplify the process, assist with legal compliance, and help make smart business decisions.