What Is the Interactive Process Under the ADA?

Participation in the interactive process is an important element of complying with the Americans with Disabilities Act (ADA). The ADA prohibits workplace discrimination against workers with disabilities and requires that employers provide a reasonable accommodation that will allow workers with disabilities to do their job. To determine a suitable accommodation, courts and the ADA favor an informal “back and forth” — the interactive process — between the employer and the employee.

What is the importance of the interactive process?

The interactive process is essential, David K. Fram, Director of the National Employment Law Institute’s (NELI) ADA & Equal Employment Opportunity Services, told TriNet in an earlier interview about the ADA. Courts “slam” employers when they do not participate in the process, Fram said. Judicial tribunals will examine the process to see if both the employer and the employee acted properly to come up with a suitable accommodation. If 1 of the parties refused to engage in or continue the interactive process, courts will rule against the party that stymied the process. The agency that enforces the ADA, the U.S. Equal Employment Opportunity Commission, also prefers to see engagement in the interactive process. The federal agency hates to see a “lack of active engagement by employers,” Fram said. While failing to participate in the process isn’t an explicit violation of federal law, some states, such as California, require that employers engage in the interactive process. In addition, failing to participate in the interactive process is almost always used by the plaintiff’s attorneys as evidence of disability discrimination.

What triggers the interactive process in the workplace?

The interactive process — and the employer’s responsibility to accommodate — is triggered whenever an employer knows or should have known that an employee needs something because of an impairment. In many instances, an employer will request a specific accommodation and that starts the process. However, there are instances when circumstances that are not as clear-cut trigger the interactive process. That’s where the “should have known” requirement comes into place.

An employer’s 1st words in the interactive process should be: "How can I help you?"

For example, if an employee mentions to their supervisor that they're late getting to work because of medical treatment, that has triggered the interactive process. In another instance, an employee who uses a wheelchair tells the employer that their wheelchair doesn’t fit under the desk in their office. According to the Job Accommodation Network (JAN), this is a request for reasonable accommodation. On the other hand, according to JAN, if an employee tells their supervisor that they would like a new chair because their present chair is uncomfortable, the employer has not been put on notice that the worker is requesting a reasonable accommodation. The need for the new chair did not link to a medical condition, JAN says.

Requests for accommodations can be informal

Requests for accommodation can be informal. The employee doesn’t have to put the request for an accommodation:

• In writing,
• Identify a specific accommodation, or
• Use specific terms such as “disability,” “ADA,” or “reasonable accommodation.”

According to the EEOC, when a need for an accommodation is obvious, the law may not even require an employee to initiate the interactive process. In fact, the employee doesn’t have to be aware of the ADA or its requirements. It’s on the employer to know when a person has triggered the interactive process. Fram has long advocated that an employer’s 1st words in the interactive process should be: "How can I help you?"

What are employer responsibilities in the interactive process?

If undertaken in good faith, participation in the interactive process can protect an employer in instances where a lawsuit is filed. A federal appeals court ruled in 2018 that multiple attempts at accommodation showed an employer’s good faith participation in the interactive process even though it never found a workable solution for the employee’s ADA disability. Employers can show good-faith participation in the process in many ways, the 3rd U.S. Circuit Court of Appeals has noted, including:

• Meeting with the employee
• Asking the worker for their preference in an accommodation
• Requesting information about the employee’s condition and limitations
• Documenting that they have considered the request
• Offering and discussing alternatives if the worker’s request cannot be fulfilled

Courts have consistently held that employees are not entitled to their accommodation of choice, only an effective, reasonable one.

Employers should keep information confidential

Employers should keep all information collected from employees about their disabilities and need for accommodations confidential. Additionally, employers should maintain medical documents concerning the employee’s disability and accommodation in a standalone file. This file should be separate from the employee’s personnel file.

What are employee responsibilities in the interactive process?

Employees have a responsibility to participate in the process. They have a responsibility to answer employer questions, provide requested medical information, and more. If matters go to court, a worker’s failure to participate can defeat their legal claim. In 2020, a federal district court ruled against an employee’s failure to accommodate claim. The plaintiff requested a private office to accommodate his allergies. The employer instead offered the employee permission to work from home. The plaintiff declined the accommodation. The federal trial court found that the employee was responsible for the breakdown in the interactive process because he had rejected telework without offering an explanation. The court said the plaintiff’s unwillingness to explain the rejection was not consistent with the “flexible give-and-take” necessary for finding an effective accommodation under the ADA.

How long should the interactive process take under the ADA?

Employers must be careful not to delay engaging in the interactive process. If an employer’s delay in starting the process is unreasonable, then the delay to start the process will be used as evidence of bias, legal experts have said. However, there are no “hard and fast” rules on how long the interactive process should take. In 2018, a federal trial court ruled that an ADA interactive process that took almost 2 years to complete was not an undue delay that denied an employee’s accommodation. The employee in that instance sued her employer alleging that it had denied her an accommodation because it failed to accommodate her sensitivity to fragrances — her claimed disability — in a timely manner. The court ruled that the length of time was reasonable, granting summary judgment to the employer. The court explained that the employer, a federal agency, acted in good faith and was engaged throughout the process. Additionally, the court said the employer suggested alternative accommodations and allowed the employee to work from home as an interim accommodation for about 1 year. The employer spent time requesting information from the woman’s doctor and ordered special equipment as an accommodation. The employer also responded promptly to the employee’s requests for information.

What steps should employers take to properly handle the process?

There are several steps that employers should take to properly handle the interactive process:

• Adopt a reasonable accommodation policy
• Adopt a no-retaliation policy
• Train front-line managers and supervisors to recognize when a worker has made a request for a reasonable accommodation
• Train managers and supervisors on the requirements of the interactive process
• Ask workers: How may I help you?

Employers should have a policy in their handbook stating that if an employee needs an accommodation to perform the essential functions of their job, they should contact a supervisor, manager, or HR, legal experts have said. Employers should also adopt an explicit no-retaliation policy. There should be a statement in the employee handbook that the company does not retaliate against employees who request accommodations. Training on the interactive process is important. Fram said the biggest mistake that employers make is not training managers and supervisors on the process. Often, managers and supervisors hear the comments that would put the employer on notice that an employee needs an accommodation or wants to talk about an accommodation, legal experts have said. Front-line managers who lack training may not realize that something has triggered the interactive process. Training can also help management avoid the perception that a worker is merely complaining or asking for special favors.

Employers should document the interactive process

Fram suggests that companies document the interactive process. If a lawsuit is filed, documentation can be used to prove that the employer engaged in good faith in the interactive process. Documentation should include:

• The employer’s efforts
• The worker’s responses
• The follow-up

Employers have a responsibility to accommodate workers

Employers have a responsibility under the ADA to accommodate workers who qualify for the law’s protections. Participation in the interactive process is an important element in complying with the federal disability law. Failure to accommodate requests can be costly. One of the best ways for employers to avoid legal claims and to meet workers with disabilities' needs is to create policies, procedures, and protocols that line up with the ADA’s interactive process.

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