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EMPLOYER LIABILITY »
ADA’s interactive process requires discussion with employee

| February 18, 2013 | News & Comment

ADA-interactive-processToo often employers believe that an employee’s inability to perform the duties of the job means the employee can be separated from employment. However, the Equal Employment Opportunity Commission’s (EEOC) regulations under the Americans with Disabilities Act (ADA) require that the employer engage in an “interactive process” with the employee before making a decision to discharge the employee. Failure to engage in the interactive process can alone be the basis for employer liability under the ADA.

The recent case of Goeden v .Darigold Inc., 27 AD Cases 771 (D. Idaho 2012), highlights the pitfall for employers who do not go through the interactive process before discharging an employee. In the case, the employee had worked as a mechanic for 17 years. After a fitness-for-duty evaluation determined that the employee could not perform the essential functions of his position, the employer discharged him from employment. The employer did not discuss the fitness-for-duty evaluation with the employee and did not address with the employee whether the employee could perform another open position. The employee sought summary judgment in the case based on his employer’s failure to engage in the interactive process.

The court agreed with the employee. The court noted that when an employer is aware of a need for some accommodation for a disabled employee, “the employer must engage in an interactive process with the employee to determine the appropriate reasonable accommodation.” Three steps are required in the interactive process: (1) direct communication between the employer and employee to explore in good faith possible accommodations; (2) consideration of the employee’s requests; and (3) offering an accommodation that is reasonable and effective. The court stated the employee’s participation is important because the employee “generally knows more about his or her capabilities” and “holds essential information for the assessment of the type of reasonable accommodation which would be most effective.”

The court found it undisputed that the employer in the case “made no attempt to interact” with the employee. The court thus awarded the employee summary judgment on his claim that the employer failed to engage in the ADA’s interactive process. This meant that the employee could proceed at trial to simply ask the jury to award monetary damages on this claim. This finding could have been easily avoided had the employer simply communicated with the employee about the findings of the fitness-for-duty evaluation, listened to the employee, and taken the time to consider in good faith whether an accommodation could reasonably be offered.

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Tony Puckett

About the author

Tony Puckett is a labor and employment attorney with the McAfee & Taft law firm. His practice involves counseling employers in employment issues and representing employers in discrimination cases, wrongful discharge cases, wage and hour actions, charges investigated by the Equal Employment Opportunity Commission, Occupational Safety and Health Administration investigations, National Labor Relations Board proceedings, union negotiations and arbitrations. In addition to representing private employers, Tony also represents municipalities in all areas of labor relations, including union negotiations, grievance and interest arbitrations, unfair labor practice proceedings and civil rights employment actions.

Tony’s achievements have earned him inclusion in Chambers USA Guide to America’s Leading Lawyers for Business, The Best Lawyers in America and Oklahoma Super Lawyers.

Tony is a frequent speaker at seminars and institutes on employment law issues in the public and private sectors. He has also presented sessions at the Annual Labor Management Conference, sponsored by the National Academy of Arbitrators Southwest Region, and the International Personnel Management Association.