29 Aug Americans with Disabilities Act Interactive Dialogues for Small Employers
Practical Advice for Smaller Employers
Recently, I have been working with a client who needs to conduct an interactive dialogue for Americans with Disabilities Act compliance. Even though we may hear about ADA compliance cases involving big companies, because the ADA applies to all employers with 15 or more employees, smaller employers often face the most complicated compliance environment because they lack the financial resources to hire HR professionals. The interactive dialogue process is the mechanism by which employers and employees come to a reasonable accommodation in the workplace. The process requires both sides, along with some input from the employee’s healthcare providers, to engage in a good-faith exchange to continue to allow the employee to work. The process is not super complicated, but it must be conducted so the employer can defend the process in court if necessary. The employer needs to come into the process with an open mind, a good job description that includes all the job’s physical, mental, and experiential needs, and some creativity. The employee needs to have candor, willingness to experiment, and flexibility. Just because an accommodation is requested, preferred, or even recommended by medical experts does not mean the employer has to agree.
1. Understand When the Dialogue is Triggered:
- The ADA interactive dialogue is triggered when an employee requests an accommodation or when the employer becomes aware of the need for one. As a small employer, it’s important to recognize that employees do not need to use specific language to request an accommodation. Any indication that an employee is struggling due to a disability should prompt this process. In fact, this trigger usually looks more like a complaint, or it might be something the employer notices. The employer does not have to wait for an accommodation request.
2. Engage in Good Faith:
- The employer and the employee must participate in the dialogue in good faith. For smaller employers, this means being proactive in communication, with a goal of understanding the employee’s needs and exploring reasonable accommodations without undue delay. Avoid a rigid “take it or leave it” approach, and be open to different solutions. You may need to try a couple of different options while working to find an accommodation. The interactive dialogue is an ongoing process; it may be temporary or permanent.
3. Keep the Process Flexible and Individualized:
- There are no strict rules for how this process should unfold; it varies depending on the situation. In fact, the fact-dependent nature of each dialogue makes hard and fast rules impossible to set. Small employers should focus on maintaining a flexible and individualized approach tailored to the specific circumstances of the employee’s disability and job requirements.
4. Document Everything:
- When dealing with employees, my mantra for all employers is “Document, Document, Document, and when you are done, document some more.” With the ADA interactive dialogue, documentation is vital. Small businesses must document all steps taken during the interactive process. This includes logging all communications, meeting notes, medical information, job requirements, accommodations considered, and the reasons for any decisions made. Documentation is critical if the process is later challenged, as it demonstrates that the employer acted in good faith and followed ADA guidelines.
5. Involve Necessary Parties:
- While small employers may not have extensive HR departments (or any HR professionals on staff at all), it’s important to involve all necessary parties in the dialogue. This could include the employee’s supervisor and, with the employee’s consent, their healthcare provider. Properly involving these parties helps ensure that the accommodation is appropriate and feasible. When seeking and receiving information related to an employee’s medical condition and recommendations from healthcare providers, employers must keep this information separate from the employee’s personnel file. Healthcare information should be used only for considering accommodations and nothing else. Using the healthcare information for something else is a ticket to a very expensive lawsuit.
6. Be Prepared for a Range of Outcomes:
- Not all interactive dialogues will lead to a feasible accommodation. In some cases, despite best efforts, an accommodation may impose undue hardship on the business. Small employers should be prepared for this possibility and understand that engaging in the process earnestly is critical, even if the outcome is not what the employee hoped for. Just because the accommodation is preferable does not mean the employer has to provide it. Employers should tell employees of potential outcomes that the employee may not like.
7. Utilize Resources and Seek Legal Guidance:
- Small employers should familiarize themselves with EEOC guidelines and seek legal advice when necessary. Understanding the nuances of the ADA and how to engage in the interactive process effectively is key to compliance and avoiding potential legal issues.
8. Avoiding Pitfalls:
- Employers should be cautious about blaming the employee for a breakdown in the dialogue. Employers should make every reasonable effort to keep the dialogue going. Smaller employers are held to a higher standard, given their control over the workplace. Ensure that all efforts are made to keep the dialogue constructive and solution-oriented.
As always, please consult legal counsel when facing a potential ADA compliance issue.