Don't be dumb: Lessons learned with ADA Reasonable Accommodation & the Interactive Process

Its time for a POP QUIZ!

Pretend you are a construction company (if you are not already).  You need to hire a field engineer so you put out a job listing on that says, among other things, that an essential part of this job is the ability to climb a ladder.   A day goes by and suddenly you have a good candidate for this position (hooray!).  During your required medical examination for all new hires, it comes out that this candidate suffered a rotator cuff injury about a year ago and he can not drive a vehicle, lift more than 10 pounds, or work with his hands above shoulder level. What do you do?

(a)    Get rid of him! Kid can't even drive. 

(b)    Ask for additional information about the injury & his ability to do essential job functions.

(c)    Engage in an interactive conversation about reasonable accommodation since the new hire may be "disabled."

(d)    Do (b) & (c).

Answer: (d)           Yes, I know it comes as a surprise but it looks like your new hire may have a disability covered under the ADA that has been brought to your attention during the pre-employment medical exam.  This means as an employer covered under the ADA you must engage in an interactive conversation with the employee about reasonable accommodation that may allow the employee to do the essential functions of the job.  This interactive process may include that described in (b). Hence, (d) is the best answer.

Since when is a "rotator cuff injury" a disability?

Since 2009.  Back in '09, the Americans with Disabilities Act was amended and it made the definition of "disability" reallllllllly broad.  Pretty much anything that effects one or more major life activities is a disability.  Also, even if a rotator cuff injury was denied coverage as a true "disability" under the ADA, an employee who is "regarded as" disabled is still covered under the Act.  This means if you assume or treat an employee or applicant as disabled, they can still sue for discrimination under the ADA.

What is an interactive process and how do I get one?

The ADA requires employers to engage disabled employees in an "interactive process" to determine whether or not a reasonable accommodation exists.  This doesn't mean the employer has to volunteer a ton of ideas; it means they have to (1) listen, (2) contemplate, and (3) respond (ideally with more than a simple "yes" or "no").  As you may have guessed, the "Pop Quiz" above is based on an actual Fifth Circuit Court of Appeals case.  In this case, the employer (an actual construction company) withdrew its offer of employment once the new hire's injury surfaced during his medical exam... even though the new hire submitted supporting documents stating he could climb a ladder (the essential job function at issue in this case) and was off all the good (read: bad) medications.  In other words, the employer made zero attempt to engage in an interactive conversation about reasonable accommodation.  As a result, this company got slapped with first an EEOC charge, then a federal district court lawsuit, and now a trip to the Fifth Circuit Court of Appeals.  But I'm sure they learned their lesson. 

Side note about Reasonable Accommodation:

Employers are not obligated to provide a reasonable accommodation if the requested accommodation would create an "undue hardship."  Determining what is an "undue hardship" is determined by the courts on a case-by-case basis but it often comes down to (1) the safety of the workplace/ other employees and (2) $$$$$$$$$$.  Even if the employer in the above case can show an undue hardship exists, they can still get dinged for not engaging in the interactive process. So follow the rules, keep good records, and consult a professional if you want another set of eyes.