REASONABLE
ACCOMMODATION:
THE INTERACTIVE
PROCESS
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California’s revised disability accommodation law (effective 1/1/2001) emphasizes the importance
of an “interactive process” between an employee and a company to determine reasonable accommodations.
In fact, employees can sue companies merely for failing to engage in this interactive process.
Is your company going through a discussion process with a disabled individual once a claim for
accommodation arises?
The following basic steps outline a procedure employers may reference when handling accommodation issues.
However, the accommodation process is intended to be dynamic. Therefore, in many situations, an employer
may need to modify some of these steps or add new steps when considering accommodations.
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Step One: Find out if the worker has a disability under federal or state law.
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Employers often need to determine whether the person has a disability to decide if the
accommodation process is even necessary. To find out if the person has a covered disability,
employers may require the employee to submit healthcare information describing the condition.
This information must be narrowly tailored to fit the business need (i.e., ascertaining if the
person has a covered disability.) Someone familiar with the definition of “disability” under
state and federal law should review the submitted information. Under federal law a physical
or mental impairment must substantially limit one of more major life activities of an employee.
The definition of what is disability under state law is broader. Starting January 1, 2001, an
impairment need only limit a major life activity; that is, make the major life activity “difficult”.
California also has a medical confidentiality law separate from the state disability law. The law
may require an employer to obtain written consent from an employee before receiving medical
information from his or her healthcare practitioner.
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Step Two: Study the job requirements.
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Assuming the worker has a disability, look carefully at the job prior to making any
accommodation decisions. Most importantly, the employer should identify and distinguish
between essential and nonessential job tasks. An employer need not remove essential job
duties from an employee’s responsibility; however, an employer is obligated to make
reasonable accommodations enabling the employee to perform the essential functions.
An employer is required to eliminate nonessential or marginal tasks from an employee’s
responsibilities. You may need to consult with the disabled individual in order to
identify essential and nonessential functions.
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Step Three: Consult with the disabled individual.
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Once you understand the job in question in terms of its essential versus nonessential functions,
consult with the disabled individual to determine his or her limitations. Find out what barriers to
perform exist and examine how they might be overcome. Consult with the individual to identify what
potential accommodations exist and how effective they will be. Focusing on what has to be done,
rather than how it is to be done now (or how it always has been done), may alert you to alternative
methods for accomplishing the same objectives.
This is a dynamic process. The more time you can spend discussing the issues with the disabled
individual, the better. You may also consider visiting the work location with the disabled individual
to “brainstorm.”
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Step Four: Consult with the worker’s medical practitioner.
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If the consultation with the employee does not yield appropriate accommodations, it is often useful
to obtain information from the employee’s medical practitioner. However, remember that most medical
practitioners are not trained in “occupational” medicine. Therefore, sometimes they do not understand
the requirements for an industrial job and provide little practical assistance. However, under the ADA
and state law, it is useful to show that you made the effort. In some situations, you may be able to
combine this step with Step 1.
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Step Five: Consider consulting with other sources.
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If discussions with the employee and his healthcare provider do not prove fruitful, consider
consulting with other sources. Companies are increasingly turning to occupational therapists,
rehabilitation consultants and similar professionals who are trained in identifying and creating
devices, procedures, etc. for accommodation. Since this process is intended to be interactive
with the employee, include the employee in these sessions.
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Step Six: Reconsult with the disabled worker.
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Once you obtain medical information or information from any other source, you should consult
again with the disabled worker to “brainstorm.” Sometimes, another source, such as a rehabilitation
counselor, may work directly with the employer and the employee.
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Step Seven: Assess any possible accommodations and undue hardship.
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After the company has obtained all of the information, you should assess the reasonableness
of each possible accommodation in terms of the effectiveness for the disabled individual to do
the essential functions of the job. You should also assess any undue hardship imposed upon the company.
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Step Eight: Employment with reasonable accommodations, if any.
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If the company decides that a reasonable accommodation exists and does not impose an undue
hardship, the company should implement the reasonable accommodation after consultation with the
employee. Sometimes if the original accommodation is ineffective, the company may need to try
additional reasonable accommodations.
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Step Nine: Consider transfers to available positions.
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If the company was unable to reasonably accommodate a worker, it may consider transferring the
worker to other positions which are open and for which the employee is qualified. You will need to
consider any reasonable accommodations available which would allow the employee to perform the new position.
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Step Ten: Documentation – ongoing.
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In practical terms, if legally challenged, the burden will be on the company to prove it completed
the accommodation process. Therefore, at every step, you should document your efforts. To reemphasize,
the accommodation process is dynamic. Be flexible. For example, after Step Seven, you may need to
recontact the employee’s healthcare practitioner to discuss whether a proposed accommodation would
present a safety threat.
Finally, seek legal counsel to ensure that you are requesting appropriate information and utilizing
the right information and waiver forms. If a company follows this process in good faith, its final
decision is much less likely to be challenged by a disabled worker in a legal proceeding.
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DO
DISCRIMINATION
LAWS APPLY
ABROAD?
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Only to U.S. citizens. Title VII and the Americans with Disabilities Act (ADA) are violated if an
American employer discriminates against a U.S. citizen overseas. Similarly, the Age Discrimination
in Employment Act (ADEA) protects any United States citizen employed overseas by a United States
corporation. The term “employee” as used in the ADEA statute was specifically amended in 1984 to
include American citizens employed by American corporations abroad.
In a recent federal circuit court decision, the court held that the Age Discrimination in Employment
Act does not cover a worker who is a foreign national who applied in his country for a job in the
United States. The court found that Congress refused to extend the extra territorial reach of the
statute to protect foreign citizens from age discrimination.
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HOURLY PAY
FOR EXEMPT
EMPLOYEE
DURING FMLA
LEAVE
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Doris Rowe was employed by a transit company as a supervisor and was considered “exempt” from
overtime compensation. After suffering an injury, she was unable to perform her job on a
full-time basis. Her employer returned her to work on a part-time schedule with reduced
responsibilities, and paid Rowe on an hourly basis during the period in which she worked
part-time. When she returned to work on a full-time basis, she was again paid her regular
salary every two weeks.
One part of the “test” for an employee’s overtime exemption status is that the employee be paid
on a salary basis. An employee is considered to be exempt under federal law if he or she receives
the full salary for each week in which any work is performed, without regard to the number of days
or hours worked.
In the lawsuit, Rowe claimed that when she was paid hourly pay for working part-time, it indicated
that she was actually a nonexempt hourly employee. She argued that she was therefore owed overtime
pay for any work in excess of 40 hours per week, even during her period of full-time employment.
The federal court of appeals covering California held otherwise. A salaried supervisory employee
who is paid on an hourly basis during a medical leave covered by the Family and Medical Leave Act
(FMLA) remains exempt from the overtime compensation requirements of federal law. The court noted
that the FMLA provides that if an employee is otherwise exempt, an employer’s compliance with the
FMLA will not affect the employee’s exempt status. Additionally, the federal regulations that
interpret the FMLA specifically state that an employer may make deductions from an employee’s
salary for any hours taken as intermittent or reduced FMLA leave within the work week, without
affecting the employee’s exempt status.
Beware of interpreting this case as allowing hourly pay for any employee under all medical leaves.
The exception from the salary basis only applies if it is an FMLA leave. (Rowe v. Ladlaw Transit Inc.,
(9th Cir., April 4, 2001)) .
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The information provided in this Employment Law Bulleting is for general information purposes only. Any questions about the law and your obligations under is should be reviewed with counsel. If you have any questions about these issues, or any issues confronting employers, please contact:
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A Professional Corporation