'Discussion over!' is not the interactive process required by the ADA
Question: Do you know the “magic words” you need to say when an employee requests an accommodation under the Americans with Disabilities Act (ADA)? Do you even know when they’re asking for such accommodations?
You can’t expect employees to walk into HR and ask, “May I have a reasonable accommodation under the Americans with Disabilities Act of 1990? Oh, and don’t forget to engage me in the required interactive process!”
It’s true that employers must start an “interactive process” after an employee request an accommodation that may fall under the ADA. But that request may come in the form of someone saying, “My doctor says my back injury means I can’t lift heavy stuff anymore.”
As the following case shows, blowing off that interactive process could be seen by the courts as “bad faith,” which gives the employee a direct admission ticket to a jury trial.
Case in Point: David Vaughan, a part-time UPS supervisor, was responsible for stacking packages, making sure packages were properly loaded onto trucks and training new workers. His job’s essential functions included the ability to stand and walk 5 hours a day, plus lifting up to 70 pounds.
After Vaughan hurt his neck at work, he missed several months and returned to light-duty work that prohibited him from lifting or moving heavy packages. Eventually, his doctor placed him on permanent medical restrictions that prohibited him from walking more than four hours or lifting more than 20 pounds.
UPS told Vaughan that because he could no longer do the job’s essential functions, he no longer had a job. Vaughn asked his UPS workers’ comp case worker if he could be considered for another position that didn’t require heavy lifting. She responded that there were no such available jobs and that “they won’t even discuss it.”
Vaughn fired off an ADA lawsuit, alleging that UPS failed to reasonably accommodate his disability. (Vaughan v. United Parcel Service, 10/4/07)How did this case end … and what lessons can be learned?
The court Vaughan a green light to take his case to a jury trial. Why? The court said that given UPS’s “tepid response” to Vaughan’s requests for assistance, his case “raised a genuine issue of material fact that UPS failed to participate in an interactive process to identify a reasonable accommodation.”
3 Lessons Learned … Without Having to Go to Court
1. Tell supervisors to listen for clues of disability-accommodation requests. Employees aren’t going to be as transparent as to ask for a “reasonable accommodation under the ADA.” You have to pick up the more subtle signals, and then take the next step.
2. Respond effectively with an interactive discussion. Consider using a standard work script to facilitate the interactive process, such as, “Thank you for letting me know about your situation. We can solve this issue together. I will get back to you.” But never ever tell an employee the conversation is “over” and “no one will discuss it any further.”
3. Reach out to your strategic partners—your fellow HR professionals, legal team and compliance officers to discuss what kind of accommodations you can offer employees who ask for them. If you’ve granted such accommodations in the past—including finding other light-duty positions—grant them again. It’s cheaper than going to court. Also, try to do something so, at a minimum, you can show you participated in the interactive processes even if, at the end of the day, you can’t make one. Document at every step.