A Practical Guide to the ADA Interactive Process

Many employers make the mistake of automatically terminating an employee who is unable to return to work after their leave under the Family Medical Leave Act (FMLA) has been exhausted. This can be a mistake because the employer is neglecting to consider whether the Americans with Disabilities Act (ADA) applies. The same is true for employers who adopt policies limiting light duty to on-the-job injuries and do not provide exceptions for persons with disabilities. While not every serious health condition rises to the level of a disability, there is no reason why an employer should not go through the ADA interactive process with an employee with a serious medical condition since it is not an ADA violation to refuse an accommodation for someone who is not actually disabled, even if you regard the person as disabled (29 CFR Part 1630.9).

In the more common situation where an employee is on FMLA and is unlikely to be able to return to work or will have work restrictions, with two to three weeks remaining of FMLA, the employer should send the employee a letter or email reminding them of the expiration of their FMLA leave, the date they must return to work, and the requirement that they supply a fitness for duty form from the treating physician. In the letter, advise that if they need more time off or will need any accommodations, they need to reach out as soon as possible to get ADA forms. The employer should then send a form for the employee to complete within 15 days, asking the following questions:

1. Identify any disability that is interfering with your ability to perform your job.
2. What essential functions of your job are you unable to perform due to your disability?
3. What non-essential functions of your job are you unable to perform due to your disability?
4. Identify all accommodations that you believe would allow you to perform the functions identified above and how long you anticipate needing the accommodation.
5. If you are not sure what accommodation is needed, do you have any suggestions about what options we can explore?
6. Is your accommodation request time sensitive? If yes, please explain.
7. If you are requesting a specific accommodation, how will that accommodation assist you? How long do you expect to need this accommodation?
8. Please provide any additional information that might be useful in processing your accommodation request.

Along with this form, include a form for the treating physician to complete. A good one is available from the Job Accommodation Network: https://askjan.org/topics/Sample-and-Partner-Examples.cfm. Finally, in the letter, schedule an ADA interactive process meeting for day 16 after sending the forms.

During the meeting, go over the completed forms and determine what the employee is asking for and whether the requested accommodation is reasonable. If not, are there other possible accommodations that will work? If the employee needs more time off, consider granting the request for up to four more weeks, even if the time will be unpaid. If the employee needs assistance at work, consider trying an accommodation for four weeks and then reassess the effectiveness of the accommodation or whether it created an undue burden. Employers should make an individualized assessment for each request. Document all accommodation requests and responses. The key to success is keeping the lines of communication open with the employee and continuing to explore possible options.

*The views and opinions expressed in the Public Risk Management Association (PRIMA) blogs are those of each respective author. The views and opinions do not necessarily reflect the official policy or position of PRIMA.*