Issue: How to meet your "interactive process" requirement with disabled employees to create accommodations.
Benefit: You can reject an employee's accommodation request if the worker doesn't cooperate in the interactive process.
Action: Feel free to use testing to plan appropriate accommodations. Set consequences if the employee won't take the test.
The Americans with Disabilities Act (ADA) requires a give-and-take discussion with disabled workers to figure out how to reasonably accommodate their disability. And you can even require employees to take tests to find a suitable position that fits their disability.
But the interactive process is a two-way street. While you should always encourage employees to participate fully in the process (including taking tests), also explain the consequences if they fail to follow your procedures. As the following case shows, employees who refuse to participate in the interactive process will write their own pink slip.
Recent case: Clarence Allen, a phone-company technician, thought his disability could be accommodated simply by not being assigned tasks involving climbing poles and ladders. But he still wanted to work as a field technician. His employer considered two independent medical opinions in concluding that Allen could work only on a desk job. Allen disagreed and requested reinstatement as a service technician. The company refused.
The company's interactive process required Allen to take a typing test to see which positions matched his skills. When he didn't show up for the test, he lost all further rights to additional accommodations under the company's policies and its collective-bargaining agreement. The company then fired him.
Allen sued under federal and state disability laws. But a district court tossed out his case and an appeals court agreed.
Reason: Because Allen failed to cooperate in the job-search process, the company didn't have to meet its interactive duty under the ADA. (Allen v. Pacific Bell, No. 02-55721, 9th Cir., 2003)
Note: Allen claimed he didn't take the test because he feared failing it again: something he had done twice before. But even if he had failed it a third time, the company's search for an alternative job for him would have continued.
- 'Direct threat' no longer required to bar former substance abusers
- Fairness, careful documentation are key to discipline process that will stand up in court
- Unemployment Insurance
- If employee loses workers' comp appeal, don't be shy about asking him to pay legal fees
- Overqualified new hire? Look out for sex disparity